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V) 


FOREIGNERS  IN  TURKEY 

THEIR   JURIDICAL  STATUS 


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FOREIGNERS  IN  TURKEY 

THEIR  JURIDICAL  STATUS 


BY 

PHILIP  MARSHALL  BROWN 

n 

Assistant  Professor  of  International  Law  and  Diplomacy  in  Princeton 

University.     Formerly  Secretary  and  Charge  d'Affaires  of 

the  American  Embassy  in  Constantinople,  and 

Minister  to  Honduras 


PRINCETON  UNIVERSITY  PRESS 
PRINCETON 

LONDON:  HUMPHREY  MILFORD 

OXFORD  UNIVERSITY  PRESS 

1914 


i>^ 


Copyright,  1914,  by 
Princeton  University  Press 

Published  October,  1914 


PREFACE 

The  rights  and  privileges  of  foreigners  in  Turkey 
are  extensive  and  anomalous  in  character. 

Under  the  extraordinary  regime  of  the  Capitula- 
tions the  Turks  have  retained  but  few  of  the  rights 
of  territorial  sovereignty  in  respect  to  jurisdiction  over 
resident  foreigners. 

The  result  of  this  condition  of  afifairs  has  been  an 
attitude  of  irritating  superiority  on  the  part  of  the 
privileged  foreigner;  a  corresponding  resentful  hos- 
tility on  the  part  of  the  humiliated  Turk ;  and  incessant 
diplomatic  controversies  of  a  most  trying  nature. 

When  an  official  in  the  American  Embassy  to  Tur- 
key the  writer  came  to  realize  the  general  need  of  a 
clearer  understanding  in  regard  to  the  exact  rights 
of  foreigners  as  distinguished  from  their  privileges 
and,  in  some  instances,  from  their  undue  pretensions. 
This  understanding  seemed  necessary  quite  as  much 
for  the  purpose  of  doing  justice  to  the  sovereign  rights 
of  Turkey  as  for  the  purpose  of  protecting  the  just 
rights  of  foreigners. 

To  discover  the  precise  juridical  bases  of  these  rights 
was  not  an  easy  task  because  of  the  fact  that  the 
sources  of  information  were  scattered,  incomplete,  and 
required  considerable  comparative  study. 

This  volume  presents  in  somewhat  condensed  form 


iv  PREFACE 

the  results  of  a  special  investigation  begun  several 
years  ago  in  Constantinople,  and  completed  at  Cam- 
bridge, Massachusetts,  largely  by  the  aid  of  the  re- 
markable Ottoman  Collection  in  the  library  of  Harvard 
University,  and  the  helpful  suggestions  of  George 
Grafton  Wilson,  Ph.D.,  LL.D.,  Professor  of  Inter- 
national Law^  in  that  institution. 

The  writer  has  aimed  first  of  all  to  indicate  the  ori- 
gins of  so-called  exterritorial  rights ;  secondly,  to  set 
forth  in  the  fonn  of  a  brief  code  the  juridical  rights 
enjoyed  by  foreigners  in  Turkey;  and  thirdly,  to 
find  a  working  hyix)thesis  on  which  to  base  those 
readjustments  which  are  bound  to  come  in  the  relations 
between  the  Sublime  Porte  and  the  Powers  if  the 
Ottoman  Empire  is  to  be  allowed  a  normal,  inde- 
pendent development  as  an  equal  member  in  the  family 
of  nations. 

It  is  hoped  that  the  material  here  gathered  together 
and  the  views  presented  may  prove  of  some  slight 
value  to  those  interested  in  this  particular  problem  and 
the  unusual  questions  of  international  law  it  involves. 

Philip  Marshall  Brown. 
May  25,   1914. 

Princeton,  New  Jersey. 


CONTENTS 

CHAPTER  PAGE 

Preface iii 

I — Origin    of    the    Rights    of    For- 
eigners       3-24 

Introduction 3 

Moslem  law  concerning  foreigners  4 
International  usage  concerning  for- 
eigners prior  to  1453      ...  8 
Legal  status  of  non-Moslem  Otto- 
man subjects 18 

II — The  Capitulations 27-47 

Charter  of  rights  granted  to  Geno- 
ese of  Galata 27 

Treaty  of  1454  between  the  Turks 

and  the  Venetians       ....  28 

Privileges    granted    to    French    in 

1528 32 

Treaty    of    1535    between    Sultan 

Soliman  II  and  Francis  I      .      .  33 

The  French  Capitulations  of  1740  38 

Modifications    of    Capitulations    in 

1867 42 

III — The  Juridical  Rights  of  Foreign- 
ers                51-97 

A.  Immunities  of  jurisdiction  in 
cases  involving  foreigners  of 
the  same  nationality   ...  52 


CONTENTS 


1.  Jursidiction   of    consular   tri- 

bunals   

2.  Courts  and  procedure 

3.  Law  administered 

4.  Execution  of  law 

B.  Immunities  of  jurisdiction  in 
cases  involving  foreigners  of 
different  nationality 

1.  Jurisdiction   of    consular   tri- 

bunals       

2.  Courts  and  procedure 

3-4.  Law  administered.     Execu- 
tion of  law 


52 

54 

59 
61 


66 

66 
69 

69 


IV — The  Juridical  Rights  of  Foreign- 
ers (Continued) 

C.  Immunities    of    jurisdiction    in 

matters  affecting  both  foreign- 
ers and  Ottoman  subjects  . 

1.  Jurisdiction  of   Ottoman   tri- 

bunals     .... 

2.  Courts  and  procedure 

3.  Law  administered 

4.  Execution  of  law  . 

D.  Inviolability  of  domicile 

E.  Special  immunities  . 


75 

75 
81 

87 
89 
90 
92 


V' — Immunities  of  Jurisdiction  and  In- 
ternational Law   .... 
Rights  of  foreigners  the  main  con- 
cern of  international  law 


101-118 


lOI 


CONTENTS  vii 

International  private  law  an  inte- 
gral part  of  international  law      .  105 

Opinions  of  international  law  publi- 
cists        106 

General  conclusions        ....  no 

Application  of  general  conclusions 

to  problem 112 

Suggested  solution  of  problem       .  114 

Appendix.  Regulations  in  force  in 
the  Consular  Courts  of  the 
United  States  in  the  Ottoman 
Dominions 119 


Selected  Bibliography  . 
Index    


135 
139 


ORIGIN  OF  THE  RIGHTS  OF 
FOREIGNERS 


CHAPTER  I 

Origin  of  the  Rights  of  Foreigners 
introduction 

The  origin  of  the  exterritorial  rights^  so  long  en- 
joyed by  foreigners  in  Turkey,  as  well  as  the  perpetu- 
ation of  these  special  immunities,  has  long  been 
ascribed  to  the  necessity  of  protection  from  the  in- 
equalities and  rigors  of  Moslem  law  as  applied  to 
non-Moslems.^ 

It  is  also  held  that  the  existence  of  this  regime  of 
exceptional  privileges  is  derogatory  to  the  sovereign, 
independent  rights  of  Turkey  since  its  formal  admis- 
sion into  the  family  of  nations  by  the  Treaty  of  Paris 
in  1856.3 

A  careful  study  of  the  subject,  however,  may  lead 

^  Exterritoriality,  as  has  been  pointed  out  by  Bonfils  and  other 
recent  writers  on  international  law,  is  a  fiction  which  is  inade- 
quate and  misleading.  It  is  not  true  that  a  foreigner  enjoying 
so-called  exterritorial  rights  carries  with  him  his  own  laws,  and 
that  he  is  subject  to  the  jurisdiction  of  his  own  country:  For- 
eigners in  Turkey,  for  example,  hold  land  in  accordance  with 
Ottoman  law  and  jurisdiction.  The  term  immunity  of  juris- 
diction is  much  more  accurate  and  satisfactory  though  exterri- 
toriality has  acquired  by  usage  a  definite  place  in  the  phrase- 
ology of  international  law.  See  Bonfils,  Droit  International 
Public,  sections  337  and  693.  See  also  Wilson  and  Tucker, 
International  Law,  p.   142.    (5th   ed.) 

2  Bonfils,  Sec.  80. 

3  Hall,  Iniertuttional  Law,  p.  52   (6th  ed.). 


4  FOREIGNERS  IN  TURKEY 

one  to  doubt  the  correctness  of  both  these  points  of 
view.  It  is  possible  to  regard  this  privileged  status  of 
foreigners,  not  as  a  bitter  humiliation  for  the  Turk, 
but  rather  as  very  much  to  his  credit.  Instead  of 
treating  immunities  of  jurisdiction  as  exceptions  to 
international  law,  and  hence,  as  affronts  to  Turkish 
sovereignty,  they  may  properly  be  regarded  as  evi- 
dence of  a  more  enlightened  and  a  more  liberal  inter- 
pretation of  the  law  of  nations  than  has  yet  been 
granted  in  Europe,  the  place  of  its  origin,  though  not 
of  its  exclusive  development,  or  application. 

Recognizing  therefore  the  existence  of  another  point 
of  view  of  this  subject  than  that  generally  accepted, 
we  may  proceed  first  to  an  examination  of  the  primary 
causes  and  the  j)eculiar  conditions  which  gave  rise  to 
these  immunities  of  jurisdiction;  secondly,  to  an 
analysis  of  these  privileges ;  and  thirdly,  to  a  determin- 
ation of  their  precise  relation  to  international  law. 

MOSLEM  LAW  CONCERNING  FOREIGNERS 

The  conventional  method  of  explaining  the  favored 
status  of  foreigners  in  Turkey  is  by  adverting  to  the 
fact  that,  according  to  the  Koran  all  non-Moslems 
must  obtain  special  guarantees  (eman),  or  \ye  con- 
sidered as  members  of  the  "house  of  war"  {Dar-ul- 
harb),  with  whom  perpetual  hostilities  are  enjoined 
in  the  absence  of  a  truce  (south). ^  Such  an  explanation 

*  See  Report  on  the  Capitulations  by  Van  Dyck  in  Senate  Ex. 
I>oc.  3.  Special  Session  of  Senate  of  46th  Congress,  p.  3^- 
See  also  D'Ohsson,  Tableau  General  de  L'Empire  Ottottian,  pp. 
39-41.  • 


ORIGIN  OF  RIGHTS  5 

is  inadequate  being  but  partially  true,  and  only  to  be 
accepted  in  a  qualified  sense. 

It  is  true  that  the  Prophet  Mohammed  seemed  to 
consider  all  mankind  as  divided  into  two  opposing 
camps:  that  of  the  "House  of  Islam"  (Dar-ul-islam) , 
and  that  of  all  unbelievers,  the  "House  of  war".^  But 
Mohammed  failed  to  maintain  a  rigid  distinction  in 
this  respect.  As  a  practical  statesman,  if  not  as  a 
tolerant  Caliph,  he  provided  that  all  conquered  non- 
Moslems,  might  live  in  peace  under  Moslem  jurisdiction 
by  paying  tribute  (haradj).^  Moreover,  in  the  mass 
of  conflicting  opinions  attributed  to  the  Prophet  in 
the  Koran  one  finds  frequent  commands  to  observe 
a  particularly  considerate  attitude  towards  "the  people 
of  the  Book"  (Kiafir-kitaby)  J  as  Mohammed  chose  to 
denote  Christians  and  Jews  alike,  in  distinction  from 
genuine  pagans  or  idolators  (Mushrikin),  towards 
whom  no  mercy  was  to  be  shown.  ^ 

The  designation  of  non-Moslems  as  members  of 
"the  house  of  war,"  therefore,  would  seem  to  have  no 
practical  value  in  determining  the  juridical  status  of 
foreigners  in  Turkey.     It  may  properly  be  considered 

^  The  Koran,  Sura  XLVII,  verse  4.  "When  ye  encounter  the 
infidels,  strike  off  their  heads  till  ye  have  made  a  great 
slaughter  among  them,  and  of  the  rest  make  fast  the  fetters." 

••  Koran,  Sura  IX,  verse  29. 

■^  Koran,  Sura  V,  verses  72,  73.  "Verily  they  who  believe, 
and  the  Jews,  and  the  Sabeites,  and  the  Christians — whoever  of 
them  believeth  in  God  and  in  the  last  day,  and  doth  what  is 
right,  on  them  shall  come  no  fear,  neither  shall  they  be  put 
to  grief." 

8  Koran,  Sura  IX,  verses  1-5. 


6  FOREIGNERS  IN  TURKEY 

as  an  approximate  equivalent  of  hostis  as  applied  by 
tlie  Romans  to  foreigners,  or  of  barbarian  as  used  by 
the  Greeks. 

While  Islam  is  truly  "a  gospel,  code  and  constitu- 
tion," it  has,  however,  like  the  American  Constitution, 
been  amplified  and  adapted  to  altered  circumstances 
in  ways  not  probably  anticipated  by  its  founder.  The 
universally  accepted  authority  in  Moslem  jurisprudence 
in  Turkey  is  the  general  code  Miiltcka-nl-cbhar  ("con- 
fluence of  the  seas")  drawn  up  by  Sheikh  Ibrahim  of 
Aleppo  by  order  of  Soliman  II.  (1520-1566).  This 
code  comprises  five  codes,  namely,  the  religious,  civil, 
commercial,  political,  and  military  codes.®  It  is  to  the 
political  code  that  we  must  refer  in  order  to  determine 
the  status  of  foreigners  in  Turkey  from  the  Moslem 
point  of  view. 

Chapter  III.  of  the  political  code,  entitled  Foreigners 
in  Moslem  Lands,  reads  as  follows : 

When  he  enters  with  the  express  permission  of  the 
sovereign  or  of  his  representatives,  the  foreigner  ought 
to  enjoy  in  Moslem  territory  the  protection  of  the  laws. 
Commentary.  By  this  permission,  protection  and  safe- 
conduct  (email)  is  accoided  to  the  foreigner  who,  in 
consequence,  is  called  Mustemin,  that  is  to  say,  placed 
under  the  protection  of  the  State.  If  necessary,  any 
Moslem,  provided  he  be  a  freeman,  may  also  grant  to  a 
foreigner  at  the  frontier,  entrance  into  the  country,  and 
his  guarantee  should  be  respected.'" 

^  D'Ohsson.  o/>.  cit.,  pp.  39-41.  Also,  Miltitz,  Manuel  des 
Consuls,  Appendix  VIII,  volume  I,  containing  excellent 
resume  of  Ottoman  legislation. 

^o  D'Ohsson,  vol.  IV,  p.  ^7.  Also,  Steen  de  Jehay,  De  la 
situation  legale  des  sujets  Ottomans  non-Musulmans,  p.  21. 


ORIGIN  OF  RIGHTS  7 

That  nothing  invidious  is  intended  by  this  designa- 
tion of  Mustemin  is  proved  by  the  interesting  fact  that 
the  same  term  is  appHed  to  the  Moslem  in  foreign 
lands. 

A  Moslem  should  not  go  to  a  foreign  land  except 
under  the  pledge  of  a  public  safeconduct.  Commentary. 
Likewise  he  should  then  bear  the  title  of  Mustemin,  as 
the  foreigner  in  Moslem  lands.     (Chapter  IV.)" 

It  would  be  difficult  to  express  in  simpler  terms  the 
rights  of  foreigners  under  the  law  of  nations  than  in 
the  words  of  this  Moslem  code :  "when  he  enters  with 
the  express  (or  implied)  permission  of  the  sovereign 
or  of  his  representatives,  he  ought  to  enjoy  .  .  .  the 
protection  of  the  laws."  Such  a  liberal,  tolerant  point 
of  view  conflicts  with  the  theory  previously  alluded  to, 
namely  that  all  unbelievers  must  be  warred  against 
until  they  are  conquered  or  obtain  special  guarantees 
by  means  of  a  truce. 

It  is  clear  both  by  Moslem  law  and  practice  that  a 
foreigner  {Mustemin)  may  enter  Turkey  without  the 
necessity  of  first  obtaining  specific  guarantees  by  treaty 
or  otherwise;  and  that  he  is  entitled  to  enjoy  full 
protection  of  the  law.  The  most  eloquent  proof  of  this 
fact  is  found  in  the  experience  of  the  Spanish  Jews,^^ 
who,  driven  forth  by  the  Inquisition  and  deprived  of 
all  foreign  protection,  found  a  welcome  asylum  under 
the  Star  and  Crescent,  and  were  permitted  to  enjoy 

11  D'Ohsson,  vol.  IV,  p.  44. 

^2  Steen  de  Jehay,  op.  cit.,  p.  347.  Also,  Young's  Corps  de 
Droit  Ottoman,  vol  II,  sec.  XXVIII. 


8  FOREIGNERS  IN  TURKEY 

with  other  non-Moslem  subjects  of  the  Sultan  exten- 
sive immunities  of  jurisdiction. 

We  may  therefore  conclude  that  the  theory  of  an 
open  and  irreconcilable  hostility  between  Moslem  law 
and  the  law  of  nations  as  regards  the  rights  of  foreign- 
ers is  not  based  on  fact.  We  are  obliged  consequently 
to  look  elsewhere  for  a  satisfactory  explanation  of  the 
origin  of  the  special  immunities  of  jurisdiction  so 
long  enjoyed  by  foreigners  in  Turkey.  It  is  important 
for  this  purpose  to  determine  what  had  been  the  estab- 
lished practice  in  regard  to  foreigners,  of  those  nations 
having  relations  with  the  Orient  previous  to  the  time 
of  the  capture  of  Constantinople  by  the  Turks.  It  is 
also  important  to  determine  the  legal  status  of  those 
non-Moslems  who  came  under  the  domination  of  the 
Turks. 

INTERNATIONAL  USAGE  CONCERNING  FOREIGNERS 
PRIOR  TO   1453 

It  has  been  remarked  that  "commerce  has  been  the 
cradle  of  international  law."  The  venturesome  trader, 
whether  on  the  Baltic  or  on  the  Mediterranean,  was 
the  principal  factor  in  the  early  development  of  the 
rules  of  peaceful  intercourse  between  nations.^^  The 
Rhodian  Laws  undoubtedly  had  their  origin  in  the 
extension  of  commerce,  as  also  the  rules  determining 
the  rights  and  duties  of  consuls.^^     Thus,  the  alien 

^8  Hautefeuille,  Histoire  de  Droit  Maritime  International,  pp. 
78-79- 

"Wilson  and  Tucker,  pp,  17-18,  189-191;  Hautefeuille,  op.  cit., 

pp.  95-99- 


ORIGIN  OF  RIGHTS  g 

who  at  first  was  treated  as  barbarian  and  hostis,  who 
was  denied  any  legal  standing  in  the  country  where 
he  might  be  sojourning  or  domiciled  for  purposes  of 
trade,  was  able,  nevertheless,  through  the  exigencies 
of  commerce  to  obtain  extensive  privileges.  What 
precisely  was  the  nature  of  those  privileges,  and  how 
far  they  had  become  established  usage  at  the  time  of 
the  Turkish  conquest  of  Constantinople  are  questions 
of  especial  interest  in  determining  the  origin  and  nature 
of  the  immunities  of  jurisdiction  granted  to  foreigners 
after  the  conquest. 

Herodotus  is  authority  for  the  statement  that  the 
Phoenicians  from  Tyre  settled  at  Memphis  in  Egypt 
possibly  as  early  as  the  reign  of  Proteus  (1294-1244 
B.C.),  and  that  they  were  permitted  to  have  separate 
temples  for  worship. ^^  King  Amasis  (579-526  B.C.), 
according  to  Herodotus,  allowed  Greek  merchants  to 
establish  themselves  at  Naucratis,  and  permitted  them 
to  be  judged  by  their  own  magistrates  according  to 
their  own  laws  and  customs.^^ 

The  Athenians  provided  proxenoi  to  attend  to  the 
wants  of  strangers  and  adjudicate  their  differences. 
These  officials  enjoyed  special  privileges  and  immuni- 
ties, and  were  often  designated  by  the  parent  state  of 
the  foreigners  concerned.  ^"^ 

The  office  of  praetor  peregrinus  was  early  instituted 
at  Rome  to  judge  between  foreigners,  as  well  as  be- 

^' Herodotus,  II,  112. 
18/WJ.,  II,  178-179. 
"  Miltitz,  I,  p.  II. 


lO  FOREIGNERS  IN  TURKEY 

tween  Romans  and  foreigners.  ^^  The  Emperor  Clau- 
dius (41-54  A.D.)  granted  to  the  merchants  of  Cadiz 
the  privilege  of  choosing  their  own  magistrate  and  of 
being  exempted  from  the  jurisdiction  of  the  Roman 
courts.^® 

The  extraordinary  privileges  granted  by  the  laws 
of  the  Visigoths  in  the  time  of  Theodoric  (453-466 
A.D.)  allowing  foreign  merchants  in  Spain  to  try  their 
cases  before  their  own  magistrates  (telonarii),  would 
seem  to  correspond  closely  to  the  privileges  of  for- 
eigners in  Turkey  at  the  present  time.^*^ 

Justinian  allowed  the  Armenians  residing  in  Con- 
stantinople to  settle  questions  of  marriage,  inheritance, 
etc.,  according  to  their  own  laws, — a  privilege  they 
have  enjoyed  ever  since.^^ 

The  Caliph  Omar  granted  to  the  Greek  Monks  in 
Palestine  about  636  A.D.,  special  privileges  in  the  way 
of  exemptions  from  local  jurisdiction.^^ 

As  early  as  the  ninth  century,  Arab  merchants 
formed  a  settlement  at  the  port  of  Canton,  China,  and 

were  allowed  to  be  ruled  and  judged  by  their  own 
Cadi.23 

18/&lrf.,    I,    p.    14. 

i»/Wrf.,  I,  p.  15. 

20  Dum  transmarini  negociatores  inter  se  causam,  nullas  de 
sedibus  nostris  eos  audire  presumat,  nisi  tantummodo  suis  legi- 
bus  audiantur  apud  telotmrios  suos.  Quoted  by  Miltitz  (I,  p. 
161)   from  Leges  Visigoth.  Liv.  XI.     Tit.  III.  Art.  2. 

21  Edwin  Pears,  Fall  of  Constantinople,  p.  144. 

22  G.  Pelissie  du  Rausas,  Le  Regime  des  Capitulations  dans 
L'Empire  Ottoman,  p.  9. 

23  Wilhelm  Heyd,  Histoirc  de  Commerce  de  L'Orient,  II, 
p.  246. 


ORIGIN  OF  RIGHTS  II 

There  is  evidence  that  Charlemagne  in  the  ninth 
century  obtained  from  the  CaHph  Haroun-el-Raschid 
special  guarantees  and  privileges  for  French 
merchants.^^ 

The  entertaining  account  given  in  the  Chronique  de 
Nestor^^  of  the  early  diplomatic  relations  between 
Russia  and  Constantinople  discloses  the  interesting 
fact  that  the  Varangians  (Warings),-^  who  were  of 
the  same  Scandinavian  stock  as  the  English;  made 
treaties  with  the  Emperors  of  Byzantium  in  907,  912. 
and  945  A.D.,  containing  stipulations  of  an  exterri- 
torial character.  The  treaty  of  912  included  provisions 
for  trial  according  to  Rusian  law,  of  Russians 
charged  with  assault ;  for  the  support  of  accusations  by 
oath  or  by  credible  witnesses ;  for  cases  of  shipwreck ; 
for  extradition ;  and  for  the  administration  by  Russian 
representatives  in  Constantinople  of  the  property  of 
Russians  dying  intestate.^'^  Nestor  gives  the  text  of 
the  treaty  of  945,  and  as  the  earliest  documentary 
evidence  of  the  granting  of  immunities  of  jurisdiction 
to  foreigners,  it  is  of  interest  to  quote  here  two 
Articles,  translated  from  the  quaint  French  text  of 
Louis  Paris.^® 

If  a  Russian  should  attempt  to  steal  from  any  one 
in  our  Empire,  he  shall  be  severely  punished  for  that  act ; 
and  if  he  shall  have  accomplished  the  theft,  he  shall  pay 

2*  Du  Rausas,  ofy.  cit^,  p.  11.;  Hautefeuille,  op.  cit.,  p.  96. 
2-''  Louis  Paris,  Chronique  de  Nestor,  Paris,  1834-35. 
2"  Gibbon,  Decline  and  Fall  of  the  Roman  Empire,  vol.   IV, 
ch.  LV,  sec.  Ill;  Pears,  Fall  of  Constantinople,  pp.  149-150. 
2^  Chronique  de  Nestor,  pp.  36-44. 
^^  Ibid.,  pp.  57-64. 


12  FOREIGNERS  IN  TURKEY 

double  the  value  of  the  object  stolen.  It  shall  be  the 
same  for  the  Greek  in  respect  to  the  Russian;  the  guilty 
person,  moreover,  shall  be  punished  in  accordance  zmth 
the  lazi's  of  his  country.     (Article  IV.) 

"If  the  Greeks  who  are  under  our  sway  should  commit 
any  crime,  the  Great  Russian  Prince  shall  in  nourise  exact 
satisfaction ;  but  he  zvill  azvait  the  orders  of  our  Tzar 
(Emperor  of  Byzantium)  for  the  infliction  of  the  punish- 
ment which  their  crime  shall  have  deserved."  (Article  X.) 

We  thus  have  five  hundred  years  before  the  capture 
of  Constantinople  by  the  Turks  treaty  agreements 
granting  to  foreigners  very  similar  exterritorial  privi- 
leges to  those  granted  in  turn  by  the  Sultans  of  Tur- 
key, with  this  important  difference,  however,  that  while 
the  earlier  privileges  were  reciprocal  in  character,  the 
immunities  of  jurisdiction  which  still  exist  in  the  Otto- 
man Empire  are  entirely  one-sided  concessions  on  the 
part  of  the  Turks. 

The  practice  of  conceding  to  foreign  merchants  the 
right  to  carry  with  them  the  jurisdiction  of  their  own 
laws  outside  their  own  territory  became  quite  general 
with  the  gradual  extension  of  commerce.  It  is  fitting 
at  this  point  to  draw  attention  to  the  fact  that  as 
stated  by  Professor  Holland  "the  notion  of  a  terri- 
torial law  is  European  and  modern."  The  same 
writer  also  observes  that : 

There  is  a  stage  in  civilization  at  which  law  is 
addressed,  not  to  the  inhabitants  of  a  country,  but  to  the 
members  of  a  tribe,  or  the  followers  of  a  religious  system, 
irrespectively  of  the  locality  in  which  they  may  happen  to 
be.  This  is  the  "personal"  stage  in  the  development  of 
law.  The  governments  which  the  barbarians  established 
on  the  ruins  of  the  Roman  empire  did  not  administer 
one  system  of  justice  applicable  throughout  a  given  ter- 


ORIGIN  OF  RIGHTS  13 

ritory,  but  decided  each  case  that  arose  in  pursuance  of 
the  personal  law  of  the  defendant;  so  that,  according  to 
an  often-quoted  passage  in  one  of  the  tracts  of  Bishop 
Agobard,  it  might  well  happen  that  "five  men,  each  under 
a  different  law,  would  be  found  walking  or  sitting  to- 
gether." In  one  and  the  same  town  the  Frank,  the  Bur- 
gundian  and  the  Roman  lived  each  under  his  own  system 
of  law.^^ 

Treating  of  this  same  subject,  Professor  Emerton 

has  remarked  that : 

The  German  thought  of  his  legal  rights  as  belonging 
to  him,  not  because  he  was  a  member  of  the  state,  but 
because  he  was  himself,  the  son  of  his  fathers,  and  the 
heir  of  all  that  had  seemed  right  to  them.  His  law  was  a 
part  of  himself.  He  could  no  more  change  it  or  part  with 
it  than  he  could  change  or  part  with  his  own  existence. 
If  he  went  into  the  territory  of  another  people,  he  carried 
his  law  with  him  and  looked  to  have  it  respected.  This 
notion  of  law  is  what  is  called  by  scholars  the  idea  of 
the  "personality  of  law,"  as  distinguished  from  the  "ter- 
ritoriality of  law."^" 

The  particular  instances  we  are  considering  of  ex- 
territorial privileges  granted  to  foreigners  should  not, 
therefore,  be  regarded  as  anomalous  in  character,  but 
rather  as  in  accordance  with  usage  which  became  gen- 
erally recognized  with  the  gradual  extension  of 
commerce. 

To  continue  our  investigation:  in  the  year  991,  the 
Greek  Emperor  at  Constantinople  permitted  the  Vene- 
tians domiciled  there  to  be  judged  by  their  own  mag- 
istrates   (Bajuli)f^   and   the   "Golden   Bull"    (Bulla 

28  T.  E.  Holland,  Elements  of  Jurisprudence,  p.  401   (loth  ed.). 
80  Ephraim   Emerton,  Introduction   to   the  Study   of  the  Mid- 
dle Ages,  p.  75. 
31  Pears,  op  cit.,  p.  158. 


14 


FOREIGNERS  IN  TURKEY 


aurea)  of  the  Emperor  Alexis,  promulgated  in  1199, 
gave  them  the  extraordinary  privilege  of  haling  his 
own  subjects  in  certain  instances  before  Venetian 
magistrates  to  l3e  judged  according  to  Byzantine  law.^- 
The  Venetian  quarter  of  Constantinople  which  was 
entirely  withdrawn  from  local  jurisdiction  comprised 
more  than  three  eighths  of  the  city.^^ 

The  Genoese  in  1261  obtained  permission  to  establish 
on  the  opposite  shore  of  the  Golden  Horn  the  separate 
town  of  Galata  where  they  maintained  not  only  an 
entirely  distinct  jurisdiction,  but  were  even  at  times 
openly  hostile  to  the  Imperial  authorities  of  Constanti- 
nople.^^ During  the  siege  of  the  city  by  the  Turks  in 
1453,  the  Genoese  promised  to  remain  neutral  provided 
they  were  left  in  the  undisturbed  enjoyment  of  their 
independent  rights  in  Galata.  It  should  be  noted,  in 
passing,  that  while  the  Turks  did  not  fully  keep  their 
word  in  this  respect,  they  did  confirm  to  the  Genoese 
their  immunities  of  jurisdiction. 

The  universality  of  the  custom  of  granting  exterri- 
torial privileges  to  foreigners  is  evidenced  by  the  dif- 
ferent codes  governing  maritime  intercourse  from 
early  times.  One  of  the  cardinal  principles  of  the 
Hanseatic  League  was  that  its  citizens  should  be  judged 
by  their  own  laws  and  customs  wherever  they  might 
engage  in  commerce. ^^    The  German  merchants  and 

32  Sir  Travers  Twiss,  Law  of  Nations,  p.  450.     (Ed.  1884.) 
33Heyd,  op  cit..  I,  248. 

3*  Pears,  p.   158;   Heyd,   I,  248;   Hautefeuille,   p.  99;   Gibbon, 

V,  ch.  LXIII.   Miltitz,  o/>.  cit.,  II,  pp.  80-90.    See  also  infra,  p.  27. 

35  Miltitz,  I,  p.   141 ;  Le  regime  des  Capitulations  by  "Ancien 


ORIGIN  OF  RIGHTS  15 

Other  inhabitants  of  Wisby  on  the  island  of  Gothland 
in  the  Baltic  evidently  enjoyed  from  as  early  as  the 
1 2th  century  exterritorial  privileges  in  the  Republic 
of  Novgorod  in  Russia.^^  It  is  of  interest  to  note 
that  while  these  privileges  w^ere  granted  under  the  form 
of  municipal  statutes  (Skraa),  they  were  actually  of 
a  reciprocal  nature,  and  were  possibly  excerpts  from 
the  famous  Laws  of  Wisby,  which  served  as  a  kind  of 
international  law  for  the  merchants  of  those  northern 
nations.  That  the  Amalfitan  Tables  provided  for  ex- 
territorial jurisdiction  is  evident  from  the  fact  that 
Amalfi  in  1093,  if  not  earlier,  maintained  its  own 
consular  court  in  the  neighboring  port  of  Naples. ^^ 

Several  of  the  Italian  cities,  such  as  Pisa  and  Ragusa. 
early  obtained  exterritorial  privileges  from  the  Greeks 
and  from  the  Saracens;  and  after  the  conquests  made 
by  the  Crusaders  the  practice  became  general. ^^  Pisans, 
Venetians,  and  other  foreigners,  including  Moslems, 
were  allowed  exterritorial  jurisdiction  in  their  own 
quarters  in  Jerusalem,  as  well  as  in  many  other  places 
in  the  possession  of  the  Latin  conquerors,  such  as 
Beirut,  Jafifa,  Cyprus,  and  Rhodes.^^ 

In  1 173,  the  Pisans  obtained  special  concessions  from 
Saladin,  Sultan  of  Egypt,  on  condition  that  they  should 
not  transport  any  Crnsaders!^^ 

Diplomat,"  p.  28;  Pardessus,  La  Collection  des  lots  maritimcs 
anterieures  au  XVIII  Steele,  T.II.Ch.XIV. 

3«  Miltitz,  I,  pp.  401-408;  Pardessus,  III,  pp.  493-494. 

3T  Pardessus,  I,  ch.  4. 

2^  Rausas,  p.  12;  Bonfils,  of^.  cit.,  sec.  735  with  note. 

39Heyd,  op.  cit.,  I,  pp.  158-161.    Rausas,  ch.  V. 

*"  Rausas,  p.  12. 


l6  FOREIGNERS  IN  TURKEY 

In  1229,  the  Venetians  were  granted  by  the  Sultan 
of  Aleppo  the  right  to  establish  a  church,  counting- 
house,  and  magistracy  of  their  own.*^ 

The  Mameluke  Sultan,  Maleck-Almazor,  granted 
the  Genoese  Consul  in  Alexandria  at  about  this  time 
the  right  of  jurisdiction  in  suits  between  Genoese 
and  Saracens,  as  well  as  between  Genoese  and  other 
Christians."*^ 

King  Louis,  the  Saint,  arranged  with  the  Sultan  of 
Egypt  in  1252  for  consular  courts  at  Tripoli  and 
Alexandria.^^ 

Somewhat  later,  on  the  initiative  of  the  Sultan  of 
Egypt,  an  agreement  was  entered  into  with  the  Grand 
Master  of  Rhodes  whereby  the  latter  was  allowed  to 
have  representatives  in  Jerusalem  and  other  places  held 
by  the  Saracens.  He  was  also  permitted  "to  protect 
all  Christians,  whomsoever,  who  might  be  exposed  to 
injuries  or  insults  from  Moslems. "^^ 

It  is  of  especial  interest  to  note  that,  while  the 
Christians  were  obtaining  the  above  enumerated  privi- 
leges from  the  Saracens,  the  Moslems  in  turn  residing 
in  Corsica  and  Sicily  were  allowed  to  have  their  own 
judges  and  separate  jurisdiction.^^ 

So  general  had  become  the  custom  of  according 
special  privileges  to  foreigners  that  by  the  beginning 

*^  D.  B.  Warden,  The  Origin,  Nature,  and  Influence  of  Con- 
sular Establishments,  p.  52. 

*2  Ancien  Diplomat,  p.  48. 

*'  Rausas,  p.  12. 

*♦  Ancien  Diplomat,  p.  48. 

*^  M.  F.  Elie  de  la  Primaudaie,  Les  Arabcs  en  Sicilie  et  en 
Italic,  p.  319. 


ORIGIN  OF  RIGHTS  17 

of  the  15th  century,  Italian  Consuls  possessing  ex- 
tensive judicial  functions  were  to  be  found  in  The 
Netherlands^®  and  even  in  London.  And  finally,  as 
perhaps  the  most  significant  of  all  these  various  early 
instances  of  exterritorial  jurisdiction,  we  have  the 
extraordinary  fact  that  sixty  years  before  the  capture? 
of  Constantinople  the  Turks  had  been  permitted  to 
have  in  that  city  their  own  Mahometan  community 
under  the  administration  of  a  Cadi  in  accordance  with 
Moslem  Sheri  law.^'^ 

It  may  be  claimed  that  many  of  these  concessions 
granted  to  foreigners  were  for  services  rendered ;  for 
promises  of  support,  as  in  the  case  of  the  Genoese.  It 
may  also  be  asserted  that  this  practice  was  based  on 
mutual  prejudice  and  distrust:  that  foreigners  would 
not  trust  themselves  to  the  jurisdiction  of  other  nations. 
It  may  be  insisted  that  all  such  privileges  were  obtained 
mainly  through  the  exigencies  of  commerce, — from 
the  necessity  of  giving  a  quid  pro  quo  rather  than  from 
a  liberal,  tolerant  conception  of  the  rights  of  aliens. 
The  subject  certainly  admits  of  discussion  and  perhaps 
of  controversy.  It  would,  however,  serve  no  particular 
purpose  at  this  point  to  do  more  than  emphasize  the 
important  fact,  that  when  the  Crescent  supplanted  the 
Cross  on  the  dome  of  St.  Sophia,  it  had  become  the 
almost  universal  custom  to  grant  to  foreigners  ex- 
tensive immunities  of  jurisdiction. 

■**  Bonfils,  sec.  y^j  with  note;  Miltitz,  IT,  p.  152. 
*''  Ancien  EHplomat,  p.  47. 


l8  FOREIGNERS  IN  TURKEY 

LEGAL  STATUS  OF  NON-MOSLEM  OTTOMAN  SUBJECTS 

The  principal  concern  of  Mohammed  the  Conquerer 
immediately  after  the  capture  of  Constantinople  was 
the  establishment  of  an  effective  system  of  administra- 
tion which  should  relieve  the  government  of  needless 
embarrassments,  and  prove  suitable  to  the  needs  of  his 
newly  conquered  Christian  subjects. 

His  idea  was  extremely  simple.  He  aimed  to  leave 
the  Greeks  to  the  fullest  practicable  extent  in  the  free 
enjoyment  of  their  own  laws  and  customs  under  the 
responsible  control  of  their  Patriarch  who  should  serve 
as  their  intermediary  or  ambassador  before  the  Sublime 
Porte.  Within  four  days  after  his  triumphal  entry  into 
the  capital,  Mohammed  induced  the  fanatical  monk, 
Georges  Scholarius,  to  occupy  the  vacant  throne  of  the 
Patriarchate.^^  The  Sultan  himself  assisted  in  state  at 
the  investiture  of  the  new  Patriarch,  on  whom,  as 
the  spiritual  successor  of  the  Greek  Emperors,  Mo- 
hammed conferred  the  unusual  title  of  Mil'let  Bashi, 
"Head  of  the  Nation."^^  He  also  solemnly  granted  to 
the  Patriarch  and  his  successors,  an  almost  unrestricted 
jurisdiction  over  the  members  of  the  Greek  "nation." 
Unfortunately,  the  original  Berat  of  Mohammed  con- 
firming these  extraordinary  privileges  has  disappeared. 
Successive    Sultans    have    most    explicitly    reaffirmed 

•'^  Steen  de  Jehay,  op.  cit.,  pp.  87-90;  Sir  Charles  Eliot  (Odys- 
seus)   Turkey  in  Europe,  pp.  266-267.     (Ed.  1900.) 

*^  The  term  mil'let,  meaning  nation,  has  been  replaced  in 
Turkish  official  documents  by  djema'at,  signifying  community. 
Steen  de  Jehay,  p.  83. 


ORIGIN  OF  RIGHTS  19 

them,  however,  and  except  for  curtailments  which  were 
inevitable  in  the  progress  of  four  centuries  and  more, 
these  exceptional  powers  are  still  asserted  by  the  Greek 
Patriarch,  as  well  as  by  the  heads  of  other  religious 
communities  which  later  received  similar  grants.^*^ 

Although  the  judicial  functions  of  the  Mil' let  Bashi 
have  gradually  become  reduced  to  questions  affecting 
principally  the  j>ersonal  status^^  of  members  of  the 
various  communities,  such  as  marriage,  divorce,  dowry 
and  inheritance,  the  tendency  of  these  communities  to 
maintain  a  national  solidarity  and  political  exclusive- 
ness  has  been  very  marked.  The  collection  of  taxes 
has  usually  been  made  through  the  heads  of  these 
Mil' lets, ^"^ — an  arrangement  which,  while  convenient 
for  both  the  Government  and  its  non-Moslem  subjects, 
serves  very  distinctly  to  emphasize  their  peculiar  juri- 
dical status  as  tributary  nations  under  the  suzerainty 
of  the  Sultan.  The  invidious  capitation  tax  (kharadj), 
formerly  extracted  from  Christians  in  token  of  sub- 
mission, as  well  as  the  offensive  designation  of  Rayah 

5°  Young,  Corps  de  Droit  Ottoman,  II,  sec.  XXII;  Steen  de 
Jehay,  ch.  II ;  Eliot,  op.  cit.,  pp.  296-297,  302 ;  Baron  de  Testa, 
Receuil  des  Traites  de  la  Porte  Ottomane,  vol.  V,  p.  170. 

'•1  Bluntschli  in  the  note  to  section  379  of  his  Droit  Interna- 
tional, (ed.  1874)  says :  "Le  principe  du  status  personnel,  en 
vertu  duquel  la  loi  du  pays  d'origine  suit  la  personne  partout  ou 
elle  se  rend,  s'applique  sur  tout  aux  questions  relatives  a  I'etat 
et  a  la  capacite  des  personnes  et  aux  successions ;  c'est  ce  meme 
principe  qui  determine  les  conditions  requises  pour  la  validite 
d^un  mariage,  les  questions  de  tutelle,  les  conditions  requises 
pour  succeder,  etc."  See  also  Young,  II,  p.  2;  Steen  de  Jehay, 
p.  12, 

"Steen  de  Jehay,  note  on  p.  11. 


20  FOREIGNERS  IN  TURKEY 

(sheep),  has  been  aboHshed.  In  its  place  was  substi- 
tuted in  1856  the  mihtary  exemption  tax  (bedel-i- 
askerye)  which  has  naturally  fallen  almost  entirely 
on  non-Moslem  subjects  owing  to  the  unwillingness 
of  the  Turks  to  incorporate  any  unl^elievers  in  the  army, 
and  on  the  other  hand,  to  the  unwillingness  of  the 
non-Moslems  to  serve  in  the  army.'^^ 

The  question  of  compulsory  military  service  and 
other  questions  concerning  the  right  to  vote  and  the 
alleged  right  of  tiational  representation  in  the  Turkish 
Parliament,  raised  after  the  Revolution  of  the  Young 
Turks  in  1908,  have  all  served  to  reveal  the  extraor- 
dinary pretensions  of  the  Greek  and  Armenian 
Patriarchs,  as  well  as  of  the  heads  of  the  other  com- 
munities, to  represent  their  "nations"  in  a  political, 
capacity  before  the  Sublime  Porte.  One  of  the  chief 
embarrassments  of  the  new  constitutional  regime  in 
Turkey  was  the  unwillingness  of  the  various  com- 
munities, particularly  that  of  the  Greeks,  to  sub- 
ordinate their  national  sentiments  to  the  broader  and 
superior  claims  of  Ottoman  nationality.^^ 

Such  an  abnormal  state  of  affairs, — the  existence  of 
veritable  imperia  in  imperio, — cannot  be  expected  to 
continue  indefinitely.     But  as  concerns  those  immuni- 

'^^  Ibid.,  pp.  8-1 1.  The  Young  Turks  after  their  revolution  of 
1908  tried  compulsory  military  service  as  a  means  of  Ottomaniz- 
ing  their  diverse  non-Moslem  fellow  subjects.  It  was  found, 
however,  that  this  plan  would  not  work,  and  it  was  accordingly 
abandoned. 

"**  The  Young  Turks  perhaps  committed  an  irretrievable  blun- 
der in  treating  with  the  respective  religious  communities  as 
distinct  nations,  and  in  determining  representation  in  parliament 


ORIGIN  OF  RIGHTS  21 

ties  of  jurisdiction  in  matters  relating  to  the  personal 
status  of  non-Moslem  subjects  which  were  granted 
spontaneously  by  Mohammed  the  Conqueror  as  an  act 
of  constructive  statesmanship,  it  would  seem  likely  that 
such  privileges  would  continue  to  exist  for  a  long  time 
to  come. 

The  reason  for  the  perpetuation  of  these  privileges, 
in  last  analysis,  is  to  be  found  in  the  fact  that  the 
Moslem  confounds  race,  religion,  and  law,  as  one  and 
the  same  thing.  The  Sheri, — the  union  of  the  Koran 
and  all  sacred  law, — is  the  basis  of  all  Mohammedan 
law  and  legislation  on  an  immense  variety  of  subjects. 
Its  prescriptions  both  as  to  rights  and  obligations  can 
only  apply  in  toto  to  the  followers  of  the  Prophet.  If 
this  be  true  in  such  matters  as  questions  of  personal 
status,  then  non-Moslems,  as  well  as  Moslems,  must  be 
permitted  to  observe  their  own  laws  and  customs.^^ 

on  the  basis  of  nationalities  rather  than  on  a  strictly  Ottoman 
basis.  Correspondence  and  diplomatic  negotiations  with  the 
Greek  Patriarch  on  the  subjects  of  recruitment,  electoral  rights, 
etc.,  were  carried  on  by  the  Grand  Vizier  as  if  with  the  am- 
bassador of  an  independent  nation. 

^^  The  observations  of  Du  Rausas  (p.  19)  in  this  connection 
are  of  interest :  "Or  la  loi  religieuse  est  necessairement  person- 
elle.  Elle  est  faite  pour  les  croyants  et  pour  les  croyants  seuls ; 
elle  ne  regit  et  ne  protege  qu'eux.  Tous  les  rapports  juridiques 
se  resolvant  en  rapports  religieux,  le  droit  est  en  quelque  sorte 
une  grace  divine  dont  seule  peuvent  beneficier  les  adeptes  de  la 
religion."  Steen  de  Jehay  (p.  22)  also  presents  some  interesting 
observations  in  the  same  connection :  "Quel  devait  done  etre 
le  traitement  a  reserver  aux  infideles  soumis  par  la  conquete 
dans  tous  les  cas  oti  la  loi  musulmane  ne  pouvait  ni  leur  etre 
appliquee  ni  etre  acceptee  par  eux?  Le  Scher'i  lui-meme  dis- 
tingue a  cat  egard  entre  les  idolatres  ou  athees  (muchrik)  et  les 


22  FOREIGNERS  IN  TURKEY 

Thus  while  Mohammed  may  have  been  actuated  by 
tolerant  and  statesmanlike  motives  in  according  such 
extensive  privileges  to  his  conquered  subjects,  he  was 
also  trying  to  solve  a  peculiar  problem  having  its  origin 
in  the  Moslem  conception  of  the  identity  of  the  state 
and  religion.  The  same  laws,  under  this  conception, 
could  not  apply  equally  to  both  Moslem  and  non- 
Moslem.  The  solution  of  the  difficulty  was  simple 
and  reasonable.  If  in  certain  respects  Moslems  may 
invoke  from  the  authorities  of  the  state  the  application- 
of  Moslem  law,  then  it  follows  that  non-Moslems  may 
likewise  invoke  the  application  of  their  own  laws  under 
similar  circumstances.  As  the  Ottoman  authorities 
are  not  competent  to  administer  such  laws,  the  non- 
Moslems  have  the  right  to  appeal  to  their  religious 
heads,  the  Mil'let  Bashi.  The  latter  thus  become,  in  a 
sense,  jx)litical  authorities  acting  in  place  of  the  Otto- 
man authorities,  and  to  that  extent  are  to  be  considered 
as  heads  of  their  respective  "nations."    While  this  has 

kafir-kitabi,  c'est-a-dire  ceux  'dont  la  religion  est  contenue  dans 
un  livre.'  Les  premiers  'n'ont  d'autre  alternative  que  de  croire 
ou  de  mourir ;  les  autres  sont  admis,  et  faisant  leur  soumission 
aux  Musulmans  victorieux,  a  conserver,  sous  le  nom  de  zimmis 
et  plus  tard,  sous  celui  de  rayahs,  leur  vie,  leurs  biens  et  meme 
leur  religion,  ainsi  que  tout  ce  qui,  dans  leur  organization,  leurs 
moeurs,  leurs  coutumes  et  leurs  lois,  etait,  aux  yeux  des  Arabes, 
inseparable  de  la  religion.' 

Les  Sultans  Osmanlis  ne  firent  pas  autre  chose  qu'appliquer 
ces  regies  lorsqu'ils  eurent  renverse  I'Empire  byzantin.  Etant 
kafir-kitabi,  les  rayahs  ne  pouvaient  etre  traites  en  esclaves.  II 
fallait  se  borner  a  exiger  d'eux  un  tribut.  II  fallait  aussi,  pour 
tous  les  cas  ou  ils  ne  seraient  pas  mis  sur  le  meme  pied  que 
les  Musulmans,  leur  donner  une  loi  speciale  ou  leur  permettre 
se  regir  suivant  leurs  lois  propres." 


ORIGIN  OF  RIGHTS  23 

created  some  embarrassments  for  the  Turkish  authori- 
ties, they  have  at  the  same  time  been  reheved  of  the 
more  embarrassing  obHgation  of  assuming  jurisdiction 
in  matters  foreign  to  Moslem  law  and  usage.  The 
solution  of  the  problem  reached  by  Sultan  Mohammed 
in  granting  immunities  of  jurisdiction  to  his  non-Mos- 
lem subjects  may  therefore  be  considered  on  the  whole 
as  wise  and  satisfactory. 

What  were  precisely  the  immunities  of  jurisdiction 
to  be  enjoyed  by  these  communities;  and  just  what 
relation  these  national  organizations  should  bear  to  the 
Porte,  are  questions  which  have  given  rise  to  much 
controversy.  The  essential  fact  to  be  noted  is  simply 
that  the  Turks  in  the  midst  of  a  great  triumph  spon- 
taneously and  generously  recognized  the  right  of  the 
conquered  to  be  governed  by  their  own  laws  and  cus- 
toms in  matters  held  sacred  by  the  Moslems,  as  well 
as  in  matters  not  of  vital  concern  to  the  state. 

It  is  evident  then  that  this  tolerant  policy  was  in 
no  way  antagonistic  to  the  spirit  or  the  letter  of  Islam. 
It  was,  in  fact,  in  entire  harmony  with  the  Moslem 
system  of  jurisprudence,  and  eloquently  refutes  the 
universal  reputation  for  intolerance  so  unjustly  at- 
tributed to  the  Turks.  This  policy,  moreover,  was  in 
harmony  with  the  generally  recognized  practice  of  na- 
tions at  that  time.  Christian  and  Moslem  rulers  as  we 
have  seen,  were  already  accustomed  to  accord  to  the 
subjects  of  each  other  reciprocal  privileges  of  an  ex- 
territorial character.  It  likewise  had  been  the  practice 
of  Mohammedan  conquerors  very  much  as  the  English 


24  FOREIGNERS  IN  TURKEY 

have  clone  in  India^®  to  leave  the  subjugated  races  in 
the  fullest  enjoyment  of  their  own  laws,  whether  in 
Sicily  under  the  Arabs"''''  or  Spain  under  the  Moors.^^ 

Whatever  may  have  been  the  reasons  and  motives 
guiding  the  Ottoman  Turks  in  their  policy  towards 
their  non-Moslem  subjects,  whether  of  tolerance, 
statesmanship,  or  practical  necessity,  it  is  sufficient  for 
the  purpose  of  determining  the  origin  and  nature  of 
the  exterritorial  privileges  of  foreigners  in  Turkey, 
simply  to  note  in  this  connection  that,  without  the  aid 
of  powerful  armies  or  battleships,  the  Christians  and 
other  subjects  of  the  Sultan  received  extensive  immuni- 
ties of  jurisdiction  resembling  in  certain  respects  those 
subsequently  granted  to  foreigners. 

^^  Holland,  op.  cit.,  p.  401. 

"  Qui  Siciliam,  Sardiniam,  Corsicamque  incolebant  populi 
Christiani  tempore,  quo  Arabes  insulas  illas  occuparent,  Grae- 
corum,  quorum  tum  parebant  imperio,  jure  utebantur.  Cujus 
juris  fundamentum  illi  legum  codices  erant,  quos  imperator 
Justinianu,  Triboniani  maxima  opera,  condiderat,  etc.  Johann 
Geor.  Wenrich,  Rerum  ah  Arabis  in  Italia,  etc.  p.  280. 

58  According  to  S.  P.  Scott  in  his  History  of  the  Moorish 
Empire  in  Europe  (p.  265)  the  Moors  respected  the  ancient 
laws  and  usages  in  Spain  as  far  as  was  consistent  with  public 
policy. 


THE  CAPITULATIONS 


CHAPTER  II 
The  Capitulations 

Having  noted  the  policy  of  Sultan  Mohammed  to- 
wards his  non-Moslem  subjects,  we  may  now  turn  to 
the  consideration  of  the  privileges  accorded  by  that 
Monarch  to  foreigners  residing  within  his  newly  ac- 
quired dominions. 

Reference  has  already  been  made  to  the  fact  that  a 
few  days  after  the  capture  of  Constantinople  on  May 
29,  1453,  Mohammed  confirmed  the  exterritorial  privi- 
leges previously  enjoyed  by  the  Genoese  of  Galata 
under  the  Greek  Emperors.  As  the  first  formal  state- 
ment of  the  policy  regarding  foreigners  subsequently 
followed  by  the  Turks  with  almost  unvarying  con- 
sistency, the  charter^  of  rights  granted  to  the  Genoese 
is  of  particular  interest.  It  runs  in  part  as  follows : 
"I,  the  Great  Seigneur,  the  Great  Emir,  Mohammed 
Bey,  etc.,  etc.,  ...  I  swear  by  God  the  creator  of  the 
heavens  ...  by  the  seven  variants  of  the  Koran  which 
we  confess,  etc.,  .  .  .  that  /  concede  to  the  inhabitants 
of  Galata  their  laws  and  franchises.  .  .  .  The  walls  of 
Galata  shall  be  razed ;  but  the  inhabitants  shall  preserve 
their  goods,  houses,  shops,  vineyards,  mills,  ships,  boats, 
women,  and  their  children.  .  .  .  They  shall  retain  their 
churches  and  their  hymns;  but  it  shall  be  forbidden 

^  Joseph   von    Hammer,    Geschichte   des   Osmanischer  Reichs, 
vol.  I,  pp.  675-678. 

27 


28  FOREIGNERS  IN  TURKEY 

them  to  ring  the  bells,  etc.,  etc."  Thus,  while  Galata 
ceased  to  exist  as  an  independent  municipality,  its  in- 
habitants retained  the  right  to  choose  their  own  magis- 
trates and  settle  their  differences  according  to  Genoese 
laws  and  customs. 

It  is  of  special  interest  to  note  that  the  political  and 
commercial  privileges  conceded  to  the  inhabitants  of 
Galata  were  quite  analogous  to  those  granted  to  the 
merchants  of  Genoa  by  the  Sultan  of  Egypt  in  1290.- 
In  other  words,  the  confirmation  by  Sultan  Mohammed 
of  the  ancient  privileges  enjoyed  by  the  Genoese  under 
the  Greek  Emperors,  was  not  merely  a  special,  isolated 
act  of  a  novel  character,  or  the  recognition  simply  of 
an  old  custom  which  the  Turks  by  reason  of  their 
reverence  for  custom  in  general  might  have  felt 
constrained  to  recognize.  It  was  rather  the  acknowl- 
edgment of  the  general  practice  of  the  times, — a 
conformity  to  the  accepted  rules  of  international 
intercourse. 

This  charter  of  rights,  however,  was  of  a  municipal 
character  rather  than  an  international  obligation,  being 
a  grant,  not  to  a  foreign  nation,  but  to  certain  for- 
eigners residing  within  Turkish  dominions.  The  treaty 
of  peace  concluded  at  Adrianople  April  15,  1454,  be- 
tween Venice  and  Sultan  Mohammed,  on  the  other 
hand,  was  a  formal  international  agreement  of  a  reci- 
procal nature.^  As  the  precursor,  if  not  the  prototype, 
of  those  later  agreements  between  Turkey  and  other 

'  Miltitz,  op.  cit.,  II,  ch.  I,  sec.  Ill,  art.  I,  p.  109. 
3  Pierre  Daru,  Historia  delta  Repuhlica  di  Venesia,  libro  XVI, 
sec.  XV,  p.  281. 


THE  CAPITULATIONS  29 

nations,  commonly  termed  Capitulations,^  this  compact 
is  of  importance  and  worthy  of  special  consideration. 

It  should  be  remembered  that  the  Venetians  residing 
in  their  quarter  along  the  Golden  Horn  in  Stamboul, 
unlike  the  Genoese  of  Galata  on  the  opposite  shore, 
had  been  completely  identified  with  the  Greeks  in  a 
common  resistance  to  the  Turks,  and  consequently  had 
suffered  severe  penalties  on  the  capture  of  the  city,  the 
chief  Venetian  magistrate  having  been  decapitated  and 
many  Venetian  nobles  thrown  into  prison.^  The  treaty 
of  Adrianople®  while  of  general  import  as  regarding 
the  commercial  and  other  interests  of  Venice,  aimed 

*  A  forced  significance  has  been  given  to  the  term  Capitulation 
as  if  it  implied  the  submission  of  unbelievers  to  the  Moslem 
Caliph  in  order  to  obtain  peace.  This  conception  has  some  basis 
m  the  fact  that  South,  the  Arabic  word  employed  in  the  early 
Capitulations,  means  truce, — the  cessation  of  war.  But  this  can 
hardly  be  held  to  have  any  other  import  than  peace  in  the  gen- 
eral sense,  as  employed  in  many  treaties  of  peace,  amity,  and 
commerce,  which  signify,  not  the  conclusion  of  war,  but  the 
agreement  of  two  nations  to  live  at  peace  with  each  other. 
Baron  de  Testa,  in  his  Receuil  des  Traites  etc.  (vol.  I,  p.  6), 
asserts  that  the  correct  word  for  Capitulation  is  Ahd-nameh, 
meaning  "letters  of  privilege."  This  seems  entirely  logical  in- 
asmuch as  the  early  Capitulations  were  in  the  form  of  a  grant, 
or  charter  of  privileges  accorded  to  foreigners  by  the  Sultans. 
The  fact  that  these  privileges  were  set  forth  under  various 
headings  {caput,  capitula),  as  statutes,  or  ordinances,  gave  rise 
to  the  vernacular  use  of  the  term  Capitulations,  which  in  the 
ordinary  acceptance  of  the  word  as  originally  employed  by  the 
Italians,  viz.,  capitulazione,  meant  nothing  more  than  a  con- 
vention, an  agreement  expressing  in  orderly  form  the  various 
stipulations  agreed  upon.  See  also,  Belin,  Des  Capitulations  et 
des  Traites  de  la  France  en  Orient,  p.  9. 

'  Miltitz,  vol.  II,  p.  72 )  Daru,  op.  cit.,  libro  XVI,  p.  277. 
8  Daru,  libro  XVI,  sec.  XIV,  pp.  281-286. 


30  FOREIGNERS  IN  TURKEY 

particularly  to  determine  the  status  of  Venetians  re- 
siding in  Turkey.  Among  its  many  provisions  were 
included  one  for  the  mutual  rendition  of  criminals; 
another  for  the  custody  and  settlement  by  the  Venetian 
Consul  (Bailo)  of  the  estates  of  Venetians  dying  in- 
testate or  without  heirs;  and  also  a  unique  agreement 
on  the  part  of  the  Sultan  to  make  indemnification  for 
Venetian  proj^erty  destroyed  during  the  capture  and 
occupation  of  Constantinople." 

A  provision  calling  for  special  mention  is  one  fixing 
a  duty  of  2  per  cent  on  all  goods  sold  by  Venetians  in 
Turkish  ports.  In  thus  including  import  duties  in  a 
solemn  treaty  agreement,  Turkey  brought  on  itself  in 
the  course  of  centuries  a  most  unfortunate  situation, 
such  that  it  cannot  today  change  its  customs  tariff  with- 
out first  obtaining  the  consent  of  all  nations  with  whom 
it  has  treaties.  As  this  consent  in  each  case  can  only  be 
obtained  as  a  rule  by  the  concession  of  a  substantial 
quid  pro  quo,  a  virtual  servitude  of  a  singularly  harsh 
nature  was  thus  innocently  established  by  these  early 
treaties  of  the  Porte. 

The  provision  of  the  Venetian  treaty  of  1454  which 

is    pertinent    to    our    present    investigation    reads    as 

follows  :* 

.  .  .  the  Signoria  of  Venice  mny  freely  send  to  Con- 
stantinople a  Bailo,  together  ivith  his  suite  according  to 
usage,  who  is  free  to  rule  in  a  crinl  capacity  and  govern, 

^  Ibid.;  Che  il  Gran  Signore  si  obbliga  a  ristorare  tutti  i  danni 
si  nell'avere  che  nella  persona  patiti  per  opera  di  Turchi  da 
Veneziani  nella  presa  di  Constantinopoli,  purche  idoneamente 
provati. 

8  Ibid.,  p.  285.  * 


THE  CAPITULATIONS  31 

and  administer  justice  between  Venetians  of  all  classes, 
the  Sultan  obligating  himself  to  require  the  Pasha,  or 
Serasker  (chief  military  officer)  of  Roumelia  to  grant 
every  assistance  to  the  Bailo,  whenever  requested,  for 
the  carrying  on  of  his  functions. 

Here  again  we  have  not  only  a  confirmation  of 
ancient  privileges,  but  also  a  further  recognition  of 
universal  practice  by  the  Turks.  The  Venetians  had 
previously  obtained  quite  similar  privileges  in  1238 
from  the  Sultan  of  Egypt,  Melek-el-Adel.  But  of 
greater  interest  is  the  fact  that  Aladin,  the  Turkish 
Sultan  of  Konia,  entered  into  a  treaty  agreement  of  a 
reciprocal  character  with  the  Venetians  in  12 19, 
whereby  nationals  of  the  one  party  enjoyed  in  the 
dominions  of  the  other  immunities  of  jurisdiction  in 
all  matters  not  of  a  criminal  nature.*^ 

Thus,  the  exigencies  of  Moslem  jurisprudence,  re- 
spect for  the  ancient  usage  of  the  Greek  Empire  as 
well  as  that  of  the  Turks  themselves,  and  respect  for 
the  generally  accepted  rules  of  international  inter- 
course; all  combined  to  induce  Sultan  Mohammed  to 
grant  by  this  treaty  of  1454  with  Venice  exterritorial 

^  The  provision  of  this  treaty  conceding  the  immunities  men- 
tioned, is  given  by  Carlo  Antonio  Marin  in  his  Storia  civile  .e 
politica  del  commercio  de  Veneziani  as  follows :  "Se  nascesse 
litigio  tra  Veneto  ed  un  d'altro  nazione, — Latinorum,  Pisanorum 
e  aliarum  gentium  cioe  d'ogni  altra  nazione  che  non  fosse  Latina, 
dovra  esso  litigio  esser  giudicato  dai  piu  probi  tra  i  Veneti, 
excepta  plaga  gladii,  &  excepto  latrocinio,  vale  a  dire  i  delitti 
criminali,  i  quali  esser  denno  giudicata  dal  Soldano,  e  dalla  sua 
Corte. 

Dall  altro  cauto  il  Despota  Tiepolo  (then  Ambassador)  pro- 
metta  al  Soldano  a  nome  del  Doge  di  osservare  del  Veneto 
stato  e  giurisdizione  le  stessissima  condizione." 


32 


FOREIGNERS  IN  TURKEY 


privileges  which  with  shght  variations  have  persisted 
through  the  different  Capitulations  between  the  Porte 
and  the  separate  Italian  States  until  this  present  day. 

While  the  Genoese  charter  of  rights  of  1453,  and  the 
Venetian  treaty  of  1454  decided  in  principle  the  atti- 
tude of  the  Turks  towards  foreigners,  and  were  the 
precursors  of  other  treaties  on  the  subject,  it  was  not 
until  the  first  part  of  the  sixteenth  century  that  the 
definite  foundation  stones  of  the  regime  of  the  Capitu- 
lations were  laid. 

In  the  year  1528,  Sultan  Soliman  II  formally  con- 
firmed the  privileges  long  enjoyed  by  the  French  and 
Catalan  merchants  established  at  Alexandria,  Egypt. 
This  charter  of  rights  prescribed  principally  the  rules 
to  be  observed  in  all  commercial  transactions ;  but  as  a 
necessary  guarantee  for  complete  freedom  of  trade,  it 
also  prescribed  the  special  immunities  of  jurisdiction 
of  the  merchants  concerned,  as  well  as  the  privileges  of 
the  consuls.  In  addition  to  a  general  guarantee  from 
hindrance  and  annoyance,  these  Capitulations  defined 
the  juridical  status  of  the  merchants  as  follows:^'' 

//  any  difference  should  arise  betzueen  Franks^^  and 
Catalans,  the  Consid  should  decide,  unless,  however,  there 
nmy  have  been  shedding  of  blood,  in  which  case  our  chief 
officials  (presidens)  shall  try  the  case.  .  .  .  And  in  conclu- 
sion, in  all  their  acts  and  negotiations,  that  they  should 
proceed  in  the  ancient  ways  without  innovation  of  any 
sort,  etc.,  etc.  .  .  .  In  conformity  zvith  which  we  command 
that  all  tJmt  is  here  above  written  be  conceded  to  the 

10  Ancien  Diplomat,  p.  49;   Miltitz,  II,  bk.  II,  p.  208. 
^1  The  word  currently  employed  in  Turkish  to  designate  all 
Europeans  is  Efrenji,  an  obvious  corruption  of  Frank. 


THE  CAPITULATIONS  33 

nations  of  the  Franks  and  of  the  Catalans  and  other 
nations  under  the  jurisdiction  of  their  consul. 

The  quaint  phraseology  of  this  old  document,  as  well 
as  the  absence  of  data  showing  exactly  what  were  the 
"ancient  ways"  of  carrying  on  business  in  Alexandria, 
leaves  some  uncertainty  as  to  the  full  scope  of  the  im- 
munities granted.  Judging,  however,  by  other  similar 
Capitulations  of  the  Sultans  of  Egypt  with  Pisa  and 
Florence,  it  may  be  presumed  that  the  merchants  of 
France,  Catalonia,  and  other  nations,  were  quite  free 
to  govern  themselves  and  settle  their  own  differences 
without  any  interference  on  the  part  of  the  local  au- 
thorities. Nothing  is  indicated  as  to  how  differences 
between  natives  and  the  merchants  were  judged. 

More  definite,  complete,  and  formal  were  the  solemn 
treaty  engagements^-  of  Sultan  Soliman  in  1535  with 
Francis  First  of  France,  who,  from  the  time  he  was 
a  prisoner  in  the  hands  of  Charles  the  Fifth,  had 
labored  to  bring  about  an  alliance  with  the  Turk 
against  their  common  abhorred  enemy,  the  House  of 
Hapsburg. 

This  general  treaty  of  peace,  amity,  and  commerce 
may  be  considered  as  the  real  commencement  of  the 
regime  of  the  Capitulations  whereby  foreigners  in 
Turkey  have  come  to  enjoy  such  extraordinary  privi- 
leges. Certainly  all  subsequent  treaties  were  closely 
modelled  on  this  treaty ;  and  other  nations  have  claimed 
as  favorable  treatment  as  therein  accorded  to  France. 
In  fact,  it  is  stated  in  the  body  of  this  compact  that  the 
King  of  France  reserved  the  right  on  behalf  of  the 
**  Ancien  Diplomat,  pp.  60-66. 


34  FOREIGNERS  IN  TURKEY 

Pope,  the  King  of  England,  and  the  King  of  Scotland, 
to  adhere  to  the  treaty  should  they  so  desire.^^ 

It  is  of  fundamental  importance,  therefore,  to  con- 
sider briefly  the  specific  provisions  of  this  epoch-making 
document  which  determined  the  juridical  status  of  the 
French  and  other  foreigners  within  the  dominions  of 
the  Grand  Seigneur. 

Article  III.  .  .  .  whenever  the  King  shall  send  to  Con- 
stantinople or  to  Pera  or  other  places  in  this  Empire  a 
magistrate  (Bailie),  just  as  he  has  at  present  a  Consul  at 
Alexandria,  said  magistrates  and  Consul  should  be  re- 
ceived and  maintained  in  authority,  in  a  fitting  m^anner, 
and  according  to  their  Faith  and  lazv,  imthout  tluit  any 
judge,  Cadi,  Soubashi,  or  other  officials  should  intervene 
in,  hear,  judge  or  decide,  zi^hcth^r  in  civil  or  criminal 
matters,  any  lawsuits,  trials,  or  disputes,  which  may  arise 
betzveen  merchants  and  other  subjects  of  th-e  King.  But 
in  case  the  orders  and  decisions  of  said  magistrates  and 
consuls  should  not  be  obeyed,  and  they  should  need  the 
Soubashi  or  other  officers  of  the  Grand  Seigneur  in  order 
to  carry  out  their  orders  and  decisions,  the  said  Soubashi 
and  other  officers  needed,  should  give  their  help  and  the 
force  necessary.  Nor  may  the  Cadis  or  other  officers  of 
the  Grand  Seigneur  judge  any  disputes  of  said  merchants 
and  subjects  of  the  King,  even  though  said  merchants 
should  so  request;  and  if  by  chance  said  Cadis  sltould 
judge,  their  decisions  should  be  of  no  effect. 

This  article  is  so  explicit  and  comprehensive  as 
to  require  no  special  comment.    It  is  of  interest,  how- 

i-"*  Le  Roy  de  France  a  nomme  la  Saintete  du  Pape,  le  Roy 
d'Angleterre  son  frere  et  perpetual  confedere,  et  le  Roy  d'Ecosse, 
ausquels  se  laisse  en  eux  d'entrer  au  present  traite  de  paix,  si 
bon  leur  semble,  avec  condition  que,  y  voulans  entrer,  soient 
tenuz  dans  huict  mois  envoyer  au  Grand  Seigneur  leur  ratifica- 
tion et  prendre  la  sienne.  (Quoted  from  text  of  Ancien 
Diplomat,  p.  66.)  ♦ 


THE  CAPITULATIONS  35 

ever,  to  note  in  this  connection  that  until  the  latter  part 
of  the  nineteenth  century  the  Porte  claimed  no  juris- 
diction whatsoever,  either  in  criminal  or  civil  suits, 
between  foreigners  of  different  nationalities;  and  that 
it  never  has  claimed  jurisdiction  in  suits  involving  for- 
eigners of  the  same  nationality. 

Article  IV.  .  .  .  the  merchants  and  subjects  of  the 
King  may  not  be  summoned,  molested,  nor  judged,  in  a 
civil  suit  against  Turks  or  other  subjects  of  the  Grand 
Seigneur,  unless  said  Turks,  Kharadjis,  or  other  subjects 
of  the  Grand  Seigneur  present  something  in  writing  from 
the  hand  of  the  accuser,  or  formal  document  from  the 
Cadi,  magistrate  {Bailie),  or  consul;  when  such  a  paper 
is  not  presented,  no  testimony  of  any  Turk  or  anyone 
else  will  be  of  value  or  accepted  in  any  part  of  the 
dominions  of  the  Grand  Seigneur;  and  the  Cadis,  police 
officers,  and  other  officials  may  not  try  or  judge  said 
subjects  of  the  King  imthout  the  presence  of  their 
dragoman. 

While  this  article  is  not  clearly  worded,  its  purpose 
was  to  guard  against  false  accusations  and  illegal  suits 
devised  to  annoy  or  thwart  any  Frank  trying  to  secure 
justice  through  the  agency  of  Turkish  judicial  pro- 
cedure. It  probably  could  not  have  been  realized  at  the 
time  the  treaty  was  signed  that  the  presence  at  the  trial, 
of  the  official  interpreter  of  the  consulate  of  the  for- 
eigner party  to  a  suit,  would  transform  that  official  in 
the  process  of  time  into  a  kind  of  judge  without  whose 
signature  and  assent  no  sentence  would  be  strictly 
considered  as  of  legal  value. ^^ 

Article  V,  .  .  .  said  merchants  and  other  subjects  of 
the  King  may  not  be  summoned  by  the  Turks  or  other 

i*Du  Rausas,  op.  cit.,  vol.  I,  pp.  437-440. 


36  FOREIGNERS  IN  TURKEY 

subjects  of  the  Grand  Seigneur,  in  criminal  suits,  before 
the  Cadis  or  other  officials  of  the  Grand  Seigneur  and 
said  Cadis  and  officials  may  not  judge  them;  they  should 
thus  send  them  immediately  to  the  Sublime  Porte,  and  in 
default  of  said  Porte,  to  the  principal  representative  of 
the  Grand  Seigneur  where  the  testimony  of  the  subject 
of  the  King  and  of  the  Turkish  subject  against  each  other 
shall  be  (duly)  weighed.^'* 

The  effect  of  this  provision  was  to  remove  all  cases 
involving  life  and  liberty  of  foreigners  from  the  juris- 
diction of  Ottoman  courts  and  to  submit  them  to 
settlement  through  diplomatic  negotiations  with  the 
Sublime  Porte.  This  cumbrous,  non-judicial  method 
of  procedure  became  in  time  most  unsatisfactory,  and 
early  in  the  nineteenth  century  the  consular  courts  as- 
sumed jurisdiction  over  their  nationals  charged  with 
crimes  against  Ottoman  subjects.  After  the  judicial 
and  other  reforms  of  the  year  1856,  however,  the  rights 
of  jurisdiction  of  Ottoman  courts  in  such  cases  were 
conceded  by  the  Powers,  with  the  important  restriction 
requiring  the  presence  of  the  dragoman  of  the  consu- 
late of  the  accused,  together  with  the  virtual  right  of 
review  of  the  decision  by  his  consular  or  diplomatic 
representative. 

1'  The  significance  of  this  reference  to  the  weighing  of  testi- 
mony lies  in  the  fact  that  the  testimony  of  Christians  in  ordi- 
nary Moslem  courts  was  not  held  of  equal  value  with  that  of 
a  "true  believer."  The  Sublime  Porte,  in  treating  such  cases 
through  diplomatic,  extra-judicial  negotiations,  was  able  thus  to 
give  proper  weight  to  the  testimony  of  a  Christian.  It  was  not 
until  1854,  that  by  Imperial  decree  dated  March  16,  "the  testi- 
mony of  Christians  in  criminal  matters  against  or  in  favor  of 
Mohammedans,  was  declared  admissible."  See  Van  Dyck's  re- 
port, pt.  I,  p.  76. 


THE  CAPITULATIONS 


37 


Other  provisions  of  the  treaty  of  1535  relating  to 
freedom  of  rehgious  beHef  and  worship,  to  exemption 
from  taxation,  to  the  settlement  of  the  estates  of  those 
dying  intestate  or  without  heirs,  and  to  such  kindred 
subjects,  are  of  no  slight  interest,  but  are  not  germane, 
however,  to  the  subject  in  hand. 

Owing  to  the  Turkish  theory  that  a  treaty  could  have 
force  only  during  the  life  of  the  Sultan  who  signed  it, 
as  a  kind  of  modtis  vivendi  or  temporary  truce  with 
unbelievers  (sotdh),  the  Capitulations  of  1535  were 
subjected  to  numerous  alterations  of  a  sweeping  char- 
acter at  the  time  of  every  new  confirmation  by  succes- 
sive Sultans.  It  was  not  until  1740  that  these  treaty 
rights  were  made  perpetual,  and  hence  not  subject  to 
further  emendation. 

It  would  be  interesting  and  profitable  to  consider  the 
various  diplomatic  negotiations  connected  with  each 
renewal  of  the  Capitulations  between  1535  and  1740; 
to  note  the  rivalries  of  the  various  Powers  to  obtain 
preeminence  and  special  privileges  in  the  Levant;  to 
study  the  evolution  of  these  early  conventions  from 
mere  commercial  agreements  with  attendant  safeguards 
for  freedom  of  commerce,  into  compacts  granting  to 
foreign  nations  and  their  nationals  exceptional  privi- 
leges not  strictly  necessary  to  freedom  of  trade.  It 
would  be  especially  of  interest  to  study  in  detail  the 
evolution  of  certain  doubtful  immunities  of  jurisdiction 
which  have  been  claimed,  and  more  or  less  successfully 
maintained  by  foreigners  in  Turkey.  The  scope  of 
the  present  investigation,  however,  does  not  permit,  nor 


38  FOREIGNERS  IN  TURKEY 

does  it  perhaps  require  so  extended  an  historical  treat- 
ment of  the  subject.  While  a  clear  understanding  of 
the  origin  of  the  Capitulations  is  necessary  to  a  clear 
understanding  of  the  juridical  status  of  foreigners  in 
the  Ottoman  Empire,  the  main  object  in  view  is  to  de- 
termine the  precise  immunities  of  jurisdiction  actually 
guaranteed  through  treaties  or  through  prescription,  if, 
in  fact,  any  prescriptive  rights  should  have  arisen. 

Inasmuch  as  the  Capitulations  of  1740  are  the  legal 
basis,  not  only  of  French  rights,  but  indirectly  of  the 
rights  claimed  by  all  other  foreigners,  it  is  important 
to  examine  seriatim  the  principal  provisions  of  that 
treaty  relating  to  immunities  of  jurisdiction. 

By  way  of  general  comment,  it  should  be  observed 
that  the  treaty^^  of  1740  is  of  the  form  properly  termed 
Capitulations,  containing,  as  it  does,  eighty-five  articles 
(capitula)  resembling  ordinances,  which  together  with 
the  elaborate  preamble  embrace  a  great  range  of  sub- 
jects. Among  these  are  detailed  regulations  governing 
commercial  intercourse,  provisions  defining  the  rights 
of  merchant  vessels,  and  others  relating  to  the  com- 
mercial privileges  of  consuls,  as  well  as  to  the  special 
prerogatives  of  ambassadors. 

The  articles  which  set  forth  the  juridical  rights  of 

French  subjects  and,  through  the  most-favored-nation 

clause,  the  rights  of  other  foreigners  are  as  follows: 

Article  15.  If  a  murder  or  other  disorder  should 
occur  between  Frenchmen,  their  ambassadors  and  con- 
suls shall  give  judgment  according  to  their  usages  and 
customs,  without  molestation  in  this  regard  by  any  of  our 
officials. 

18  Ancien  Diplomat,  pp.   150-182. 


THE  CAPITULATIONS  39 

Article  26.  If  any  of  our  subjects  should  have  a  dispute 
with  a  French  merchant,  and  they  should  refer  it  to  the 
Cadi,  said  judge  will  not  entertain  the  suit,  if  the  French 
dragoman  is  not  present;  and  if  said  interpreter  is  busy 
at  that  time  with  some  pressing  affair,  they  shall  wait 
until  he  should  come ;  but  the  Frenchmen  will  also  hasten 
to  produce  him,  without  abusing  the  pretext  of  the  ab- 
sence of  their  dragoman.  And  if  any  difference  should 
arise  between  French  subjects,  the  ambassadors  and 
consuls  shall  haz'e  jurisdiction,  and  shall  give  judgment 
according  to  their  usages  and  customs  without  hindrance 
from  anybody. 

Article  29.  We  also  confirm  to  the  French  all  that  is 
contained  in  the  Imperial  Capitulations  accorded  to  the 
Venetians ;  and  forbid  all  persons  from  opposing  by  any 
obstacle,  suit,  or  trickery,  the  course  of  justice  and  the 
execution  of  my  Imperial  Capitulations. 

Article  41.  Suits  exceeding  four  thousand  aspres  shall 
be  judged  by  my  Imperial  Divan  (the  Porte)  and  no- 
where else. 

Article  52.  If  it  should  happen  that  the  French  Consuls 
and  merchants  should  have  any  disputes  with  the  con- 
suls and  merchants  of  another  Christian  nation,  they  shall 
be  permitted  ztnth  the  consent  and  at  the  demand  of  the 
parties  (to  the  suit),  to  have  recourse  to  their  ambassa- 
dors who  reside  near  my  Sublime  Porte :  and  as  long  as 
the  plaintiff  and  the  defendant  shall  not  consent  to  bring 
such  suits  before  the  Pashas,  Cadis,  officials,  or  customs 
officers,  the  latter  (authorities)  shall  not  compel  them 
to  do  so,  nor  presume  to  take  cognizance  of  same. 

Article  65.  If  a  Frenchman  or  a  protege  of  France 
commit  a  murder  or  some  other  crime,  and  it  is  desired 
that  justice  be  had  i'n  the  case,  the  judges  and  officers  of 
my  Empire  shall  proceed  in  the  matter  only  in  the  pres- 
ence of  the  ambassador  and  consuls,  or  of  their  deputies 
in  the  places  where  they  may  be  found ;  and  in  order  that 
they  should  do  nothing  contrary  to  elevated  justice  or 


40 


FOREIGNERS  IN  TURKEY 


to  the  Imperial  Capitulations,  the  necessary  search  and 
investigation  shall  be  made  with  care  by  both  parties. 

Article  66.  When  one  of  our  subjects,  whether  a 
merchant  or  otherwise,  shall  possess  letters  of  exchange 
on  Frenchmen,  if  those  on  whom  they  are  drawn  or  the 
responsible  persons  do  not  accept  them,  it  shall  not  be 
permitted  without  true  cause,  to  compel  them  to  pay  said 
letters,  and  merely  a  letter  of  protest  shall  be  required, 
in  order  to  act  thereupon  against  the  drawer,  and  the 
ambassador  as  well  as  the  consuls  shall  do  everything 
possible  to  obtain  reimbursement. 

Article  70.  The  officers  of  justice  as  -well  as  the  mili- 
tary officials  (police)  may  not,  without  necessity,  enter  by 
force  a  house  inhabited  by  a  Frenchman;  and  when  the 
situation  requires  that  it  be  entered,  they  shall  notify  the 
ambassador  or  the  consul  in  the  localities  where  they  may 
be  found,  and  he  shall  be  taken  to  the  place  in  question 
with  the  persons  involved ;  and  if  anyone  violates  this 
provision  he  shall  be  punished. 

Articles  71  and  72  which  are  too  lengthy  and  dis- 
cursive to  quote  here,  provide  against  any  possible 
abuses  in  the  way  of  judicial  persecutions  of  Frenchmen 
and  natives  without  the  cognizance  and  consent  of  the 
ambassador  or  consul,  as  well  as  of  the  Sublime  Porte. 

Such  are  the  principal  provisions  of  the  Capitulations 
of  1740,  on  which  rest  the  claims  of  the  French  and  of 
nearly  all  other  foreigners  to  the  extensive  immunities 
of  jurisdiction  they  today  enjoy  in  Turkey.  There  are 
other  articles  of  the  treaty  relating  to  these  immunities ; 
but  as  their  effect  is  to  guarantee  the  faithful  execution 
of  the  principal  stipulations,  they  do  not  warrant  for 
our  purpose  special  consideration. 

Through  tenacious  insistence  on  the  right  to  the  same 
treatment  accorded  to  the  most  favored  nation,  the 


THE  CAPITULATIONS  4I 

Other  nations  have  successively  obtained  from  Turkey 
for  the  benefit  of  their  own  nationals  the  same  privi- 
leges granted  to  France  in  the  Capitulations  of  1535 
and  1740  as  confirmed  by  subsequent  treaties.  ^^  Eng- 
land was  the  first,  in  the  year  1579;  Holland  also  in  the 
same  year;  Austria  in  1615;  Russia  in  1711 ;  Sweden 
in  1737;  Denmark  in  1756;  Prussia  in  1761 ;  Spain  in 
1782;  Sardinia  in  1825;  the  United  States  in  1830; 
Belgium  in  1838;  Portugal  in  1843;  Greece  in  1854; 
Brazil  in  1858,  etc.^^  Most  of  these  treaties  were 
later  modified;  by  extension  in  some  instances,  by  re- 
strictions in  others.  But  in  general  it  may  be  said  that 
France  first  obtained  for  the  rest  the  main  immunities 
of  jurisdiction  claimed  by  all  the  Powers  in  subsequent 
treaties ;  and  that  all,  through  the  most-favored-nation 
clause,  secured  the  mutual  benefit  of  those  special  privi- 
leges obtained  by  any  individual  nation.  For  example, 
Article  IV  of  the  treaty  between  Turkey  and  the  United 
States,  which  led  to  rather  extreme  claims  of  jurisdic- 
tion on  the  part  of  the  latter  (as  will  be  shown  further 
nn),^^'  offers  a  precedent  though  perhaps  a  poor  one 
on  which  other  nations  might  found  similar  claims. 

1'  Van  Dyck's  Report,  pt.  I,  pp.  15-23. 

18  The  Arbitral  Award  of  the  Ambassadors  of  the  six  Powers, 
signed  March  20,  1901,  in  respect  to  the  rights  of  Greek  sub- 
jects in  Turkey  after  the  war  of  1897,  confirmed  the  rights  of 
foreigners,  in  the  main,  though  it  made  some  concessions  to  the 
Turks  by  restricting  slightly  the  privileges  enjoyed  by  the 
Greeks  before  their  disastrous  trial  at  arms  with  Turkey.  See 
Journal  de  Droit  International  Prive,  1902,  pp.  936-945.  For  an- 
alysis of  this  award,  see  article  by  Professor  Politis  in  the 
Revue  generale  de  Droit  International  Public,  1903,  p.  86. 

18"  See  page  76  infra. 


42  FOREIGNERS  IN  TURKEY 

The  whole  regime  of  the  Capitulations  was  subjected 
to  a  sweeping  readjustment  in  1867  through  the  pro- 
mulgation of  the  law  granting  to  foreigners  the  right 
to  possess  real  estate.^"  This  readjustment  was  brought 
about  by  the  fact  that  the  concession  of  the  right  to 
hold  land  was  made  contingent  on  the  consent  of  the 
foreigner  to  become  completely  subject  to  Ottoman 
jurisdiction  and  law  in  all  that  concerned  ownership 
of  real  proj^erty. 

Articles  one  and  two  of  the  Imi>erial  rescript  of  the 
7th  Sepher  1284  (January  16,  1867)  are  as  follows:-^ 

Foreigners  are  admitted  to  the  same  privilege  as  Otto- 
man subjects,  and  without  any  other  restriction,  to  enjoy 
the  right  of  holding  Real  Estate  whether  in  the  city  or 
in  the  country,  throughout  the  Empire,  with  the  exception 
of  the  Province  of  the  Hedjaz,-'  by  submitting  them- 
selves to  the  laws  and  regulations  which  govern  Ottoman 
subjects,  as  is  hereafter  stated. 

This  arrangement  does  not  concern  subjects  of  Ottoman 
birth  who  have  changed  their  nationality,  who  shall  be 
governed  in  this  matter  by  a  special  law.^^ 

^"  Van  Dyck  in  his  Report,  part  I,  pp.  48-83,  gives  an  excel- 
lent historical  and  critical  review  of  the  whole  question  of  land 
ownership,  and  of  the  negotiations  connected  with  the  drawing  up 
of  the  Protocol  by  which  the  Powers  assented  to  the  modifica- 
tions of  the  Capitulations  involved  in  the  concession  to  for- 
eigners to  hold  real  estate  subject  to  Ottoman  law  and 
jurisdiction. 

-*^  As  given  in  Treaties,  Conventions,  etc.,  of  the  United  States, 
pp.  1344-1348.  This  translation  is  awkward  but  it  is  quoted 
because  official. 

21  The  Hedjaz  district  in  Arabia  was  exempted  for  the 
reason  that  it  contains  the  Moslem  holy  places  of  Mecca, 
Medina,  et  al.,  which  may  not  be  defiled  by  the  presence  of 
"unbelievers." 

22  The  object  of  this  clause  was  to  discourage  the  naturaliza- 


THE  CAPITULATIONS 


43 


Foreigners,  proprietors  of  Real  Estate  in  town  or  in 
country,  are  in  consequence  placed  upon  terms  of  equality 
with  Ottoman  subjects  in  all  things  that  concern  their 
landed  property. 

The  legal  effect  of  this  equality  is: 

1.  To  oblige  them  to  conform  to  all  the  laws  and  regu- 
lations of  the  police  or  of  the  muncipality  which  govern 
at  present  or  may  govern  hereafter  the  enjoyment,  the 
transmission,  the  alienation,  and  the  hypothecation  of 
landed  property. 

2.  To  pay  all  charges  and  taxes  under  whatever  form 
or  denomination  they  may  be,  that  are  levied,  or  may  be 
levied  hereafter,  upon  city  or  country  property. 

3.  To  render  them  directly  amenable  to  the  Ottoman 
civil  tribunals  in  all  questions  relating  to  landlord  (sk) 
property,  and  in  all  real  actions,  whether  as  plaintiffs  or 
as  defendants,  even  when  either  party  is  a  foreigner.  In 
short,  they  are  in  all  things  to  hold  Real  Estate  by  the 
same  title,  on  the  same  condition  and  under  the  same 
forms  as  Ottoman  owners  and  without  being  able  to  avail 
themselves  of  their  personal  nationality,  except  under  the 
reserve  of  the  immunities  attached  to  their  persons  and 
their  movable  goods,  according  to  the  treaties. 

So  violent  a  breach  in  the  citadel  of  the  Capitulations 
could  not  be  effected  by  the  mere  fiat  of  the  Sultan, 
laudable  as  it  was  in  purpose.  The  submission  of  for- 
eigners to  Ottoman  jurisdiction  and  law  to  so  sweeping 
an  extent  could  only  be  secured  through  the  formal 
consent  and  sanction  of  the  Powers.  After  prolonged 
diplomatic  negotiations  in  which  the  Porte  displayed 

tion  in  foreign  countries  of  Ottoman  subjects  whose  allegiance 
has  always  been  held  to  be  inalienable  except  by  the  express 
consent  of  the  Sultan.  Moreover,  it  has  been  the  constant  aim 
of  the  Porte  to  prevent  by  every  possible  means  any  increase 
in  the  number  of  foreign  proteges  of  whatever  sort  in  Turkey 
with  the  attendant  evils  of  diplomatic  intervention  derogatory 
to  Turkish  sovereign  rights.     See  page  94  infra. 


44  FOREIGNERS  IN  TURKEY 

great  skill  and  won  substantial  concessions  as  a  quid 
pro  quo  for  granting  the  right  to  hold  real  estate,  a 
protocol  was  drafted  and  agreed  to  by  the  principal 
Powers-'  under  the  leadership  of  Monsieur  Bourree, 
the  French  Ambassador,  defining  the  conditions  under 
which  foreigners  should  be  subject  to  Ottoman  laws 
and  jurisdiction. 

While  this  momentous  agreement  reaffirmed  the 
immunities  conferred  by  the  Capitulations,  and  ac- 
cording to  Monsieur  Bourree,  was  intended  to  apply 
solely  to  foreigners  holding  real  estate,^*  it  did  in  fact 
make  concessions  which  were  in  derogation  of  privi- 
leges previously  enjoyed  by  all  foreigners.  These  con- 
cerned the  right  of  local  authorities,  under  certain  con- 
ditions, to  search  the  residences  of  foreigners  which 
had  hitherto  been  deemed  inviolable.  They  concerned 
also  the  right  of  local  tribunals  to  try  certain  cases 
without  the  presence  and  assistance  of  the  consular 
representative  of  the  foreigner  party  to  the  suit  as 
formerly  required  under  the  Capitulations. 

This  Protocol  is  too  lengthy  to  be  quoted  in  full, 
but  certain  of  its  provisions  should  be  noted  in  order 
that  we  may  have  clearly  before  us  the  exact  modifi- 
es Most  of  the  Powers  gave  their  consent  to  this  important 
modification  of  exterritorial  rights  by  authorizing  their  diplo- 
matic representatives  in  Constantinople  to  sign  the  Protocol. 
The  United  States  preferred  to  give  the  transaction  the  character 
of  a  formal,  international  convention  signed  under  seal  by  duly 
authorized  plenipotentiaries.  The  Protocol  was  formally  pro- 
claimed by  the  President  on  October  29,  1874,  •"  accordance 
with  the  authorization  of  Congress  expressly  given  by  its  Act 
of  March  23,  1874.  See  U.  S.  Treaties,  etc.,  pp.  1344-1346. 
2*  Van  Dyck's  Report,  part  I,  p.  81. 


THE  CAPITULATIONS  45 

cations  of  the  Capitulations  which  were  entailed  by  the 
admission  of  foreigners  to  equal  rights  with  Ottoman 
subjects  in  the  ownership  of  real  estate.^^ 

The  law  granting  foreigners  the  right  of  holding  real 
estate  does  not  interfere  with  the  immunities  specified  by 
the  treaties,  and  which  will  continue  to  protect  the  person 
and  the  movable  property  of  foreigners  who  may  become 
owners  of  real  estate.  .  .  .  (Domicile.)  The  domicile 
of  any  person  residing  upon  Ottoman  soil  being  inviol- 
able, and  as  no  one  can  enter  it  without  the  consent  of  the 
owner,  except  by  virtue  of  orders  emanating  from  compe- 
tent authority  and  with  the  assistance  of  the  magistrate 
or  functionary  invested  with  the  necessary  powers,  the 
residence  of  foreigners  is  inviolable  on  the  same  principle, 
in  conformity  with  the  treaties,  and  the  agents  of  the 
public  force  cannot  enter  it  without  the  assistance  of  the 
Consul  or  of  the  delegate  of  the  Consul  of  the  Power  on 
which  the  foreigner  depends. 

By  residence  we  understand  the  house  of  inhabitation 
and  its  dependencies :  that  is  to  say,  the  outhouses,  courts, 
gardens  and  neighbouring  enclosures,  to  the  exclusion  of 
all  other  parts  of  the  property.^® 

In  the  localities  distant  by  nine  hours  or  more  than 
nine  hours  of  travel  from  the  residence  of  the  Consular 
Agent,  the  agents  of  the  public  force  may  on  the  request 
of  the  local  authority  .  .  .  enter  into  the  residence  of  a 
foreigner,  without  being  assisted  by  the  Consular  Agent, 
but  only  in  case  of  urgency,  and  for  search  and  proof  of 

25  U.  S.  Treaties,  etc.,  pp.  1344-1346. 

28  The  inviolability  of  the  domicile  of  foreigners  arose  from 
their  original  custom  of  permitting  them  to  reside  in  their  own 
quarters  under  the  separate  jurisdiction  of  their  own  officials  as  in 
the  case  of  the  Genoese  and  Venetians  in  Constantinople.  When, 
in  the  process  of  time,  foreigners  began  to  reside  outside  of 
these  quarters,  they  were  allowed  to  carry  with  them  the  same 
privileges.  In  other  words,  the  domicile  of  the  Genoese  or 
Venetian  was  treated  as  national  territory  just  as  the  quarter 
formerly  assigned  to  his  nationality.  It  is  easy  to  see  how 
naturally  the  term  exterritoriality  came  into  use  when  applied 
in  this  sense.    See  Du  Rausas,  I,  p.  87.    See  page  90  infra. 


46  FOREIGNERS  IN  TURKEY 

the  crime  of  murder,  of  attempt  at  murder;  of  incendiar- 
ism, of  armed  robbery  either  with  infraction  (sic)  or  by 
night  in  an  inhabited  house,  of  armed  rebeUion  and  of  the 
fabrication  of  counterfeit  money,  and  this  entry  may  be 
made  whether  the  crime  was  committed  by  a  foreigner 
or  by  an  Ottoman  subject,  and  whether  it  took  place  in 
the  residence  of  a  foreigner  or  not  in  his  residence,  or 
in  any  other  place.  .  .  . 

Beyond  the  residence,  the  action  of  the  police  shall  be 
exercised  freely  and  without  reserve ;  but  in  case  a 
person  charged  with  crime  or  offence,  should  be  ar- 
rested, and  the  accused  shall  be  a  foreigner,  the  im- 
munities attached  to  his  person  shall  be  observed  in 
respect  to  hitn.  .  .  . 

(Jurisdiction  of  local  tribunals.)  In  localities  more  dis- 
tant than  nine  hours'  travel  from  the  residence  of  the 
Consular  Agent,  in  which  the  law  of  the  judicial  organi- 
zation of  the  Vilayet  (province)  may  be  in  force,  for- 
eigners shall  be  tried,  without  the  assistance  of  the  Con- 
sular delegate  by  the  Council  of  Elders  fulfilling  the 
function  of  justices  of  the  peace,  and  by  the  tribunal  of 
the  canton,  as  well  for  actions  not  exceeding  one  thou- 
sand piasters  as  for  offences  entailing  a  fine  of  five 
hundred  piasters  only,  at  the  maximum. 

Foreigners  shall  have,  in  any  case,  the  right  of  appeal 
to  the  tribunal  of  the  Arrondissement  (Caza)  against 
the  judgments  issued  as  above  stated,  and  the  appeal 
shall  be  followed  and  judged  with  the  assistance  of  the 
Consul,  in  conformity  with  the  treaties.  The  appeal 
shall  always  suspend  the  execution  of  a  sentence. 

In  all  cases  the  forcible  execution  of  the  judgments, 
issued  on  the  conditions  determined  heretofore,  shall  not 
take  place  without  the  cooperation  of  the  Consul  or  of 
his  delegate.  .  .  . 

Foreigners,  in  whatever  locality  they  may  be,  may 
freely  submit  themselves  to  the  jurisdiction  of  the  Coun- 
cil of  Elders  or  of  the  tribunal  of  the  canton  without 
the  assistance  of  the  Consul  in  cases  which  do  not 
exceed  the  competency  of  these  councils  or  tribunals, 
reserving  always  the  right  of  appeal  before  the  tri- 
bunal of  the  Arrondissement,  where  the  case  may  be 


THE  CAPITULATIONS  47 

brought  and  tried  with  the  assistance  of  his  Consul  or 
his  delegate.  .  .  . 

It  is  well  understood  that  all  these  restrictions  do  not 
concern  cases  which  have  for  their  object  questions  of 
real  estate,  which  shall  be  tried  and  determined  under 
the  conditions  established  by  the  law. 

The  right  of  defence  and  the  publicity  of  the  hearings 
shall  be  assured  in  all  cases  to  foreigners  who  may  ap- 
pear before  the  Ottoman  tribunals,  as  well  as  to  Ottoman 
subjects. 

The  preceding  dispositions  shall  remain  in  force  until 
the  revision  of  the  ancient  treaties, — a  revision  which  the 
Sublime  Porte  reserves  to  itself  the  right  to  bring  about 
hereafter  by  an  understanding  between  it  and  the  friendly 
powers. 

It  is  clear  that  the  concessions  included  in  the  above 
quoted  provisions  of  the  Protocol  governing  the  sub- 
mission of  foreigners  holding  real  estate  to  Ottoman 
jurisdiction  constituted  a  serious  weakening  of  the 
whole  fabric  of  the  Capitulations,  while  demonstrat- 
ing incidentally  the  insufficiency  of  the  fiction  of  ex- 
territoriality as  an  explanation  of  privileges  which, 
strictly  speaking,  are  imninnities  of  jurisdiction  that 
may  be  considerably  restricted  from  time  to  time  by 
mutual  agreement. 

Having  thus  briefly  reviewed  the  historical  develop- 
ment of  the  Capitulations,  and  noted  their  principal 
provisions  governing  the  juridical  rights  of  foreign- 
ers, we  may  next  proceed  to  endeavor  to  reduce  to  the 
compass  of  a  simple  code  tliese  rights  as  recognized  in 
practice  or  claimed  in  theory  at  the  present  time  in 
Turkey.  ^^ 

27  Egypt  and  Cyprus  are  not  considered  in  this  connection 
because  they  are  only  nominally  Turkish  territory  and  enjoy 
a  special  status  under  British  rule. 


THE   JURIDICAL   RIGHTS    OF 
FOREIGNERS 


CHAPTER  III 
The  Juridical  Rights  of  Foreigners 

In  attempting  to  reduce  to  the  limits  of  a  definite 
code  the  recognized  or  asserted  rights  of  foreigners  in 
Turkey,  it  is  necessary  to  bear  in  mind  that  these 
rights  do  not  rest  in  the  case  of  each  nationahty  on 
any  single  treaty.  If  this  were  so,  the  task  would  be 
relatively  simple.  As  has  been  already  pointed  out 
(page  41),  those  rights  which  were  originally  based 
on  the  French  Capitulations  of  1535  and  1740,  in  the 
process  of  time,  have  been  extended  or  restricted  bv 
other  treaties  or  protocols,  as  well  as  by  varying  inter- 
pretations accepted  in  different  cases  arising  between 
the  Powers  and  the  Porte.  Usage  also  plays  no  little 
part  in  determining  the  rights  of  foreigners.  Our  ob- 
ject must  be  to  try  to  determine  clearly :  first  those 
rights  which  are  not  disputed,  and  second,  those  rights 
which,  though  questioned,  may  have  the  sanction  of 
long  usage. 

The  subject  may  best  be  considered  under  the  fol- 
lowing aspects:  (i)  immunities  of  jurisdiction  in 
cases  involving  foreigners  of  the  same  nationality;  (2) 
in  cases  concerning  foreigners  of  different  nationality; 
and  (3)  in  cases  between  foreigners  and  Ottoman 
subjects.  In  each  instance  the  principal  points  to  be 
considered  are :  ( i )  the  nature  of  the  rights  involved ; 

51 


52  FOREIGNERS  IN  TURKEY 

(2)  the  kind  of  tribunals  and  judicial  procedure  em- 
ployed; (3)  the  law  to  be  applied;  and  (4)  the  execu- 
tion of  the  law. 

A.     IMMUNITIES  OF  JURISDICTION  IN  CASES  INVOLVING 
FOREIGNERS  OF  THE  SAME  NATIONALITY^ 

I.  Consular  tribunals  have  absolute  jurisdiction  in 
cases  involving  foreigners  of  the  same  nationality.^ 

This  sweeping  immunity  of  jurisdiction  has  been 
consecrated  by  all  the  Capitulations  since  the  charter 
of  rights  granted  to  the  Genoese  of  Galata  by  Mo- 
hammed the  Conqueror  in  1453.  It  has  never  been 
questioned  by  the  Porte,  even  in  cases  which  directly 
concerned  the  state  in  the  maintenance  of  public  order. 
If  one  foreigner  murders  another  of  the  same  na- 
tionality, he  may  be  tried  and  punished  only  by  his 
own  consular  court. 

There  are,  however,  certain  exceptions  to  the  rule 

1  The  material  for  this  chapter  has  been  drawn  mainly  from 
Le  Regime  des  Capitulations  by  Pellssie  du  Rausas,  head  of  the 
French  Law  School  in  Cairo,  and  from  La  Justice  Ottomcnc, 
by  Andre  Mandelstam,  formerly  Dragoman  of  the  Russian  Em- 
bassy in  Constantinople.  The  former  work  is  a  most  ex- 
haustive, analytical  study  of  the  whole  subject.  The  latter  is 
the  latest,  and  perhaps  the  most  authoritative  book  in  regard 
to  actual  usage  and  practice  in  Turkey  respecting  the  juridical 
rights  of  foreigners.  The  writer  is  under  particular  obliga- 
tion to  Mr.  Mandelstam  both  as  to  form  and  substance  in  the 
preparation  of  this  volume. 

2  Mandelstam,  pp.  213-224;  Du  Rausas,  pp.  219-393.  See  page 
supra,  for  text  of  Article  15  of  the  French  Capitulations  of 
1740,  on  which  this  right  is  based. 


JURIDICAL  RIGHTS  53 

stated  above.  First,  as  previously  indicated,  ior- 
eigners  are  subject  to  Ottoman  law  and  jurisdiction 
in  all  matters  relating  to  the  ownership  of  real  estate.^ 
The  question  of  inheritance,  however,  as  in  all  matters 
involving  questions  of  personal  status,  may  properly 
come  before  a  consular  tribunal  in  order  to  determine 
who  are  the  legal  heirs  entitled  to  inherit  property 
of  a  deceased  foreigner.  The  Porte  has  endeavored 
to  extend  Ottoman  jurisdiction  in  property  matters  so 
as  to  cover  disputes  as  to  rent.  This  contention  has 
not  been  admitted  by  the  Powers.  Such  cases  are 
regarded  by  them  as  of  like  nature  to  any  other  con- 
tracts between  foreigners  of  the  same  nationality,  and 
hence  justiciable  in  a  consular  court. 

Another  question  of  like  nature  is  that  of  mort- 
gages. It  is  recognized  that  anything  relating  to  the 
sale  or  transfer  of  mortgaged  property  is  entirely 
within  the  province  of  Ottoman  tribunals.  But  if  the 
point  at  issue  is  merely  the  payment  of  interest  in 
compliance  with  the  terms  of  the  mortgage,  namely, 
the  carrying  out  of  a  contract,  this  is  claimed  by  the 
Powers  to  be  within  the  competence  of  the  consular 
court  of  the  parties  concerned.^ 

The  Porte  has  claimed  that  all  suits  relating  to  the 
falsification  of  trademarks  are  within  the  competence 

'  Du  Rausas,  pp.  444-466.    See  also  page  42  supra. 

*  Mandelstam,  p.   119.     See  the  same  work   (pp.   111-138)    for 
detailed   discussion   regarding  the  conflicts  between   the   Powers 
and  the  Porte  over  the  interpretation  of  the  law  and  protocol 
of  1867  in  respect  to  jurisdiction  in  questions  involving  owner-" 
ship  of  real  estate. 


54  FOREIGNERS  IN  TURKEY 

of   Ottoman  tribunals  alone;  but  this  has  not  been 
formally  conceded  by  the  Powers.^ 

It  has  been  noted  that  foreigners  of  their  own  free 
will  may  have  recourse  to  Ottoman  courts  if  they  so 
prefer.'"  Such  a  procedure,  however,  as  a  matter  of 
fact,  is  not  countenanced  by  the  Powers  except  in  suits 
involving  less  than  a  thousand  piasters  ($44.00),  in 
localities  distant  more  than  nine  hours  from  the  con- 
sular agent  of  the  foreigners  party  to  the  suit." 

2.    Courts  and  Procedure 

Consular  courts  vary  greatly  in  form  and  pro- 
cedure. England"  and  Austria-Hungary,  for  example, 
both  maintain  supreme  courts  at  Constantinople  with 
powers  of  original  jurisdiction  as  well  as  of  appeal. 
The  United  States,  however,  has  no  formal  tribunal, 
the  Consul  acting  as  judge  without  any  legal  ceremo- 
nies or  complicated  procedure.  The  principal  provisions 
of  the  United   States   Statutes   for  the  organization 

'  Mandelstam,  p.  223. 

^*  See  article  52  of  treaty  of  1740,  page  39  supra;  also  page  46. 

^ Ibid.,  p.  214.  A  curious  conflict  of  jurisdiction  exists  be- 
tween certain  of  the  Patriarchs  in  Constantinople  and  the 
Powers,  the  former  claiming  the  right  to  judge  in  matters  re- 
lating to  personal  status  between  foreigners  owing  spiritual  al- 
legiance to  the  respective  Patriarchates.  Thus  it  is  entirely 
possible  that  two  Armenians,  who  may  have  been  naturalized 
in  the  United  States,  might  submit  for  the  decision  of  the 
Armenian  Patriarch  a  question  relating  to  divorce  or  inheri- 
tance.    See   Mandelstam,  p.   219. 

''  For  powers  and  jurisdiction  of  British  courts  in  Turkey 
see  Hall,  Foreign  Jurisdiction  of  the  British  Crown,  chapter  II; 
Young,  op.  cit.,  I,  pp.  279-284. 


JURIDICAL  RIGHTS  55 

and  procedure  of  Consular  Courts  as  set  forth  in  the 
Instructions  to  the  Diplomatic  Officers  of  the  United 
States,  are  as  follows  :^ 

214.  Criminal  Jurisdiction. — Consuls  .  .  .  are  empow- 
ered to  arraign  and  try  all  citizens  of  the  United  States 
charged  with  offences  against  law,  committed  in  such 
countries,  respectively  (China,  Siam,  Turkey,  etc.),  and 
to  sentence  such  offenders  in  the  manner  therein  author- 
ized, and  to  issue  all  processes  as  are  suitable  and  nec- 
essary to  carry  this  authority  into  execution. — R.  S.,  sees. 
4084,  4087, 

215.  Civil  Jurisdiction. — Consuls  are  invested  with  all 
the  judicial  authority  necessary  to  execute  the  provisions 
of  such  treaties,  respectively,  in  regard  to  civil  rights, 
whether  of  property  or  person;  and  such  jurisdiction 
embraces  all  controversies  between  citizens  of  the 
United  States,  or  others,  provided  for  by  such 
treaties.  .  .  . — R.  S.,  sec.  4085. 

220.  Original  Jurisdiction. — The  power  of  commenc- 
ing original  civil  and  criminal  proceedings  is  vested  in 
consuls  exclusively,  except  that  capital  cases  for  murder 
or  insurrection  against  the  government  of  the  country 
in  which  they  reside,  by  citizens  of  the  United  States, 
or  offences  against  the  public  peace  amounting  to  felony 
under  the  laws  of  the  United  States,  should  be  tried  be- 
fore the  Minister  of  the  United  States  in  the  country 
where  the  offence  is  committed,  if  allowed  jurisdiction; 
and  except,  also,  that  original  jurisdiction  is  vested  in 
said  ministers  respectively  in  cases  where  a  consular 
officer  shall  happen  to  be  interested  as  party  or  as  wit- 
ness.— R.  S.,  sees.  4090,  4109.^ 

8  Instructions  to  the  Diplomatic  Officers  of  the  United  States, 
1897,  pp.  79-98.  The  numbers  prefixed  indicate  paragraphs. 
See  also  Wharton's  International  Law  Digest,  I,  Sec.  125; 
Moore's  International  Law  Digest,  II,  Sec.  262-266.  The  Regu- 
lations in  force  in  the  Consular  Courts  of  the  United  States, 
in  Turkey  are  given  in  the  Appendix  to  this  volume. 

*  "The  word  'minister'  as  used  in   Title  XLVII   of  the  Re- 


56  FOREIGNERS  IN  TURKEY 

221.  Associates  in  Criminal  Cases. — Whenever,  in  any 
case,  the  consul  is  of  opinion  that,  by  reason  of  the  legal 
questions  which  may  arise  therein,  assistance  will  be 
useful  to  him,  or  whenever  he  is  of  opinion  that  severer 
punishment  than  five  hundred  dollars  fine  or  ninety  days' 
imprisonment  will  be  required,  he  shall  summon  to  sit 
with  him  on  the  trial  one  or  more  citizens  of  the  United 
States,  not  exceeding  four,  who  shall  be  taken  by  lot 
from  a  list  previously  submitted  to  and  approved  by  the 
minister  and  who  shall  be  persons  of  good  repute  and 
competent  for  duty.  Every  such  associate  shall  enter 
upon  the  record  his  judgment  and  opinion  and  shall  sign 
the  same;  but  the  consul  shall  give  judgment  in  the 
case. — R.  S.,  sec.  4106. 

222.  Capital  Casesj — In  trials  for  capital  offenses  there 
must  be  not  less  than  four  associates,  who  must  all  con- 
cur in  opinion  with  the  consul ;  and  their  opinion  must 
be  approved  by  the  minister  before  there  can  be  a  con- 
viction. But  a  person  put  upon  trial  for  a  capital  of- 
fense may  be  convicted  of  a  lesser  oflfense  of  similar 
character. — R.  S.,  sees.  4102,  4106, 

223.  Associates  in  Civil  Cases. — Whenever  a  consul  is 
of  opinion  that  any  case  involves  legal  perplexities  and 
that  assistance  will  be  useful  to  him,  or  whenever  the 
damages  demanded  exceed  five  hundred  dollars,  he  shall 
summon  to  sit  with  him  on  the  hearing  of  the  case  not 
less  than  two  nor  more  than  three  citizens  of  the  United 
States,  who  shall  be  taken  from  a  list  previously  submit- 
ted to  and  approved  by  the  minister  and  who  shall  be 
of  good  repute  and  competent  for  duty.  Every  such 
associate  shall  note  upon  the  record  his  opinion,  and 
also,  in  case  he  dissents  from  the  consul,  such  reasons 

vised  Statutes  means  the  person  invested  with  and  exercising 
the  principal  diplomatic  functions.  The  word  'consul'  means 
any  person  invested  by  the  United  States  with  and  exercising 
the  functions  of  consul-general,  vice-consul-general,  consul,  or 
vice-consul. — R.  S.,  sec.  4130."  (Paragraph  202  of  Diplomatic 
Instructions.) 


JURIDICAL  RIGHTS  57 

therefor  as  he  thinks  proper  to  assign;  but  the  consul 
shall  give  judgment  in  the  case. — R.  S.,  sec.  4107. 

227,  228.  Settlement  of  Civil  Cases  and  Minor  Of- 
fenses.— These  paragraphs  on  the  instructions  relate  to 
sections  4098  and  4099  of  the  Revised  Statutes  which 
provide  for  the  settlement  out  of  court  by  arbitration, 
referee,  etc.,  of  controversies  of  a  civil  character,  and 
criminal  cases  of  minor  importance,  upon  pecuniary  or 
other  considerations. 

229.  Forms  of  Proceedings. —  (This  paragraph  relates  to 
sections  41 17-4120  of  the  Revised  Statutes  which  pro- 
vide for  the  drawing  up  and  promulgation  of  rules  and 
regulations  by  the  minister  with  the  advice  of  the  several 
consuls  in  regard  to  the  forms  of  processes  to  be  is- 
sued by  the  consular  courts,  the  manner  in  which  the 
trials  shall  be  conducted,  fees,  bail,  etc.,  etc.) 

233.  Evidence. — In  all  cases,  criminal  and  civil,  the 
evidence  shall  be  taken  down  in  writing  in  open  court 
under  such  regulations  as  may  be  made  for  that  purpose ; 
and  all  objections  to  the  competency  or  character  of 
testimony  shall  be  noted,  with  the  ruling  in  all  such 
cases.  The  evidence  so  taken  down  shall  be  a  part  of 
the  case. — R.  S.,  sec.  4097. 

234.  Appeals  to  Minister. — The  minister  is  authorized 
to  hear  and  decide  all  cases,  criminal  and  civil,  which 
may  come  before  him  on  appeal  and  to  issue  all  processes 
necessary  to  execute  the  power  conferred  upon  him ;  and 
he  is  fully  empowered  to  decide  finally  any  case  upon 
the  evidence  which  comes  up  with  it  or  to  hear  the 
parties  further  if  he  thinks  justice  will  be  promoted 
thereby.  He  may  also  prescribe  the  rules  upon  which 
new  trials  may  be  granted,  either  by  the  consul  or  by 
himself,  if  asked  upon  sufficient  grounds. — R.  S.,  sec. 
4091. 

235.  Appeals  to  Minister,  when  Allowed. — An  appeal 
is  allowed  from  the  consul  to  the  minister  in  the  follow- 
ing cases : 


58  FOREIGNERS  IN  TURKEY 

In  civil  cases — 

(a)  When  the  consul  sits  with  associates  and  any  of 
them  differ  from  him.  If  no  appeal  is  lawfully  claimed, 
the  decision  shall  be  final. — R.  S.,  sec.  4107. 

(b)  (In  China  and  Japan.) 
In  criminal  cases — 

(a)  When  the  consul  sits  with  associates  and  any  of 
them  differ  from  him.  The  case  shall  be  referred  to  the 
minister  for  his  adjudication. — R.  S.,  sec.  4106. 

(b)  When  the  consul  sits  alone  and  the  fine  exceeds 
one  hundred  dollars  or  the  term  of  imprisonment  for 
the  misdemeanor  exceeds  sixty  days.  The  appeal  may 
be  either  upon  errors  of  law  or  matters  of  fact. — R.  R., 
sec.  4089. 

237.  Judgments  of  Consuls  Final. — The  judgments  of 
consuls  are  final  in  the  following  cases : 
In  civil  cases — 

(a)  When  the  consul  sits  alone  and  the  damages  de- 
manded do  not  exceed  five  hundred  dollars. — R.  S.,  sec. 
4107. 

(b)  When  the  consul  sits  with  associates  and  they 
concur  with  him.  .  .  .R.  S.,  sees.  4092, 4107. 

In  criminal  cases — 

(a)  When  the  consul  sits  alone  and  the  fine  does  not 
exceed  one  hundred  dollars  or  the  term  of  imprisonment 
does  not  exceed  sixty  days. — R.  S.,  sec.  4105. 

(b)  When  the  consul  sits  with  associates  and  they 
concur  with  him,  except  in  capital  cases. — R.  S.,  sec.  4106. 

It  may  be  seen  from  these  excerpts  that  the  organiza- 
tion and  procedure  of  the  consular  courts  in  Turkey 
is  extremely  simple  with  a  view  to  meeting  peculiar 
conditions  and  facilitating  the  administration  of  jus- 
tice.*®   In  these  respects,  exterritorial  jurisdiction  has 

^'^  In   Moore's   Ititertiational   Law  Digest    (vol.   II,   sec.   263) 
are  to  be  found  the  following  observations  in  this  connection. 


JURIDICAL  RIGHTS  59 

much  to  commend  it  in  comparison  with  the  jurisdic- 
tion of  the  home  courts. 

J.  Law  Administered 
The  laws  enforced  in  the  foreign  judicial  tribunals 
in  Turkey  are  such  as  may  be  prescribed  by  the  legis- 
lation of  the  various  countries,  and  vary  greatly  in 
character  and  scope.  Those  of  France^ ^  are  most 
elaborate  and  comprehensive,  while  those  of  the  Uni- 
ted States^ ^''  are  very  simple  though  adequate  for  their 
purpose.  The  chief  provisions  of  the  Revised  Statutes 
in  this  respect,  as  indicated  in  the  Instructions  to  the 
Diplomatic  Officers  of  the  United  States,  are  as 
follows.^^ 

"...  Mr.  Fish  entered  into  a  full  discussion  of  the  minister's 
power  to  make  decrees  and  regulations,  under  section  5  and  6 
of  the  act  of  June  22,  i860.  He  described  it  as  being  'confined 
to  the  course  of  procedure  in  pursuing  judicial  remedies,  and 
as  not  extending  to  the  creation  of  new  rights  or  duties  in  citi- 
zens of  the  United  States,  or  to  the  modification  of  personal 
rights  and  obligations  under  the  existing  laws,*  and,  with  re- 
gard to  the  diversities  in  the  common  law  arising  from  the 
complex  Federal  system  in  the  United  States,  he  expressed  the 
opinion  that  'it  would  be  most  discreet  to  allow  the  anomalous 
jurisdiction  of  our  consular  courts  ...  to  find  its  limits  and 
definition  from  the  practical  exigencies  of  administration  and 
the  acquiescence  of  the  government  within  whose  territory  the 
jurisdiction  is  exercised.' " 

The  enormous  latitude  allowed  to  the  jurisdiction  of  Ameri- 
can consular  courts  in  Turkey  could  not  fail  to  give  rise  to  a 
unique  body  of  law  and  procedure  havi;ig  slight  relation  to 
that  observed  in  the  United  States. 

11  Du  Rausas,  pp.  308-332. 

11*  See  Appendix  for  United  States  Rules,  etc.,  for  consular 
courts. 

^^  Diplomatic  Instructions,  p.  87. 


6o  FOREIGNERS  IN  TURKEY 

217.  Jurisdiction,  Hozv  Exercised. — Jurisdiction  in 
both  criminal  and  civil  matters  shall  be  exercised  in 
conformity,  first,  with  the  laws  of  the  United  States; 
second,  with  the  common  law  and  the  law  of  equity  and 
admiralty;  and  third,  with  decrees  and  regulations,  hav- 
ing the  force  of  law,  made  by  the  ministers  of  the  United 
States  in  each  country,  respectively,  to  supply  defects 
and  deficiencies  when  neither  the  common  law,  nor  the 
law  of  equity  or  admiralty,  nor  the  statutes  of  the  United 
States  furnish  appropriate  and  sufficient  remedies. — R.  S., 
sec.  4086. 

218.  Power  of  Ministers  to  Make  Regulations. — The 
authority  of  a  minister  to  make  regulations  having  the 
force  of  law  within  the  country  to  which  he  is  accredited 
is  a  judicial  authority.  The  minister  is  required  to  ex- 
ecute the  power  in  conformity  with  the  laws  of  the 
United  States,  with  authority  to  supply  defects  and  de- 
ficiencies: (a)  Where  those  laws  are  not  adapted  to  the 
exercise  of  the  judicial  authority  conferred  by  the  statute ; 
(b)  where  they  are  deficient  in  the  provisions  to  furnish 
suitable  remedies.  (R.  S.,  sec.  4086.)  In  each  of  these 
contingencies  the  minister  has  authority  to  make  regula- 
tions in  order  "to  furnish  suitable  and  appropriate  reme- 
dies," and  for  no  other  purpose  whatever.  Every  powei* 
named  in  the  statute  in  this  respect  is  conferred  up>on 
the  minister  "in  order  to  organize  and  carry  into  eflfect  a 
system  of  jurisprudence."  .  .  . 

Under  the  exterritorial  theory  respecting  the  status 
of  foreigners  in  Turkey,  they  should  only  be  subjected 
to  those  laws  which  are  applicable  to  them  within  their 
native  jurisdiction.  As  a  matter  of  fact,  however, 
acting  in  conformity  with  the  Roman  legal  maxim 
locus  regit  actum,  the  consular  courts  frequently  are 
influenced  in  their  decisions  by  local  usages  and  cus- 
toms. This  principle  applies  in  such  matters  as  mar- 
riage, in  various  commercial  transactions,  the  organi- 


JURIDICAL  RIGHTS  6l 

zation  of  special  communities  and  corporations,  and  in 
general  in  the  determination  of  the  validity  of  juridi- 
cal acts.    Du  Rausas  goes  so  far  as  to  afifirm  that : 

The  consular  tribunals  should  refuse  to  approve  any 
custom  which  might  be  in  opposition  with  a  law  of  pub- 
lic order  inspired  by  motives  of  moral  and  social  inter- 
est; but  if  the  law  of  public  order  contradicted  by  the 
custom  is  inspired  by  political  or  economic  nwtives,  the 
consular  tribunals  should  not  hesitate  to  apply  the  cus- 
tom. By  zmy  of  resume,  custom  has  force  of  law  in 
every  case  ivhere  it  does  not  contradict  a  law  of  public 
order  inspired  by  motives  of  moral  or  social  import}^ 

It  is  clear  that  foreigners  are  not  truly  under  the 
extraterritorial  jurisdiction  of  their  home  laws.  On 
the  contrary,  they  may  even  be  denied  the  benefit  of 
their  own  laws,  as  illustrated  by  the  fact  that  Ameri- 
cans, accused  of  crime  before  a  United  States  Consular- 
Court  in  Turkey,  may  be  indicted  without  a  grand  jury 
and  tried  without  a  petit  jury.^* 

4.  Execution  of  Lazv 
As    to    the    enforcement  of  law,  the  powers  and 
functions  of  consuls  vary  widely.     The  police  juris- 
diction of  French  consuls^^  over  their  own  nationals  is 

13  Du  Rausas,  p.  318.  The  same  author  also  states  (p.  241) 
that :  "The  rule  'locus  regit  actum'  serves  as  universal  law 
(droit  commun)  when  it  is  a  question  of  determining  as  to 
form  the  value  of  an  act  which  took  place  in  a  foreign  land. 
In  order  to  discard  the  application  of  this  universal  law  in  the 
Ottoman  Empire,  a  formal  provision  (texte)  v/ould  be  neces- 
sary. This  provision  does  not  exist  either  in  French  legislation, 
or  in  any  other  foreign  legislation." 

1*  Diplomatic  Instructions,  p.  83. 

1'  As  to  powers  and  jurisdiction  of  French  consuls,  see  Du 
Rausas,  pp.  243-263,  332-393- 


62  FOREIGNERS  IN  TURKEY 

very  great  extending  even  to  the  right  of  expulsion. 
In  earlier  times  a  French  consul  exercised  over  his 
fellow  countrymen  a  control  closely  resembling  that 
of  a  governor  of  a  conquered  province.  The  police 
powers  of  the  American  consuls,  on  the  other  hand, 
are  most  limited  being  concerned  with  punitive  rather 
than  with  preventive  measures.^^  In  general,  it  may 
be  said  that,  while  theoretically  foreigners  are  bound 
equally  with  natives  to  respect  Ottoman  laws  and 
regulations,  in  actual  practice  they  enjoy  greater  free- 
dom than  many  of  them  would  have  in  their  native 
lands.  This  is  due  to  the  fact  that  Turkish  police 
have  learned  by  bitter  experience  that  it  is  often  unwise 
to  interfere  in  any  way  with  foreigners,  and  also  that 
the  police  powers  of  consular  authorities  are  insuffi- 
ciently employed  except  in  the  case  of  gross  infractions 
of  the  law. 

The  arrest  of  foreigners  accused  of  crimes  by  other 
foreigners  of  the  same  nationality  is  usually  effected 
by  the  marshals  of  the  consular  courts  issuing  the 
warrants  of  arrest. ^"^  The  native  guards  (Cavass) 
attached  to  every  consulate  may  also  make  the  arrest.  ^^ 
In  some  instances  the  consular  authorities  may  re- 
quest the  Ottoman  officials  to  make  the  arrest,  or  the 
latter  on  their  own  initiative  may  arrest   foreigners 

18  The  Consulate  General  in  Constantinople  is  aided  in  its 
police  work  by  a  United  States  marshal  duly  appointed  for  the 
purpose. 

17  Mandelstam,  p.  176. 

i*Van  Dyck's  Report,  part  I,  pp.  96-99. 


JURIDICAL  RIGHTS  63 

flagrante  delictii,  and  turn  them  over  immediately  to 
the  competent  consular  representatives.^^ 

In  case  there  is  no  consular  prison  for  the  detention 
of  such  persons,  it  is  customary  to  request  their  im- 
prisonment in  Turkish  jails.  This  is  undesirable  from 
the  point  of  view  of  the  Turks  who  have  to  feed  and 
care  for  prisoners  in  whom  they  have  no  interest.  It 
is  likewise  undesirable  from  the  point  of  view  of  the 
prisoner  whose  physical  comforts  are  frequently 
neglected.  ^*^ 

After  sentence  has  been  pronounced  by  the  consular 
tribunal,  it  is  usual  to  remand  the  prisoner  to  the 
country  of  his  allegiance,  either  for  trial  on  appeal, 
or  for  the  infliction  of  the  penalty  imposed.  For  minor 
offenses,  the  consular  courts  usually  prefer  to  impose  a 
fine  rather  than  imprisonment  with  all  its  attendant  in- 
conveniences of  maintaining  a  foreign  prison  in  Tur- 
key, or  the  expense  and  trouble  of  deportation. 

For  grave  offenses,  most  of  the  Powers  require  final 
judgment  by  the  home  courts  in  case  of  appeal.  Such 
a  procedure  has  the  obvious  merit  of  taking  from  a 
consular  court  the  extreme  powers  of  indictment,  trial, 
and  judgment,  without  review  by  another  tribunal. 

The  British,  Greek,  and  American  judicial  pro- 
cedure, while  varying  greatly  in  form,  is  based  on  the 
principle  that  the  proper  place  for  a  trial  is  the  forum 
delicti.  Appeal  in  certain  cases,  both  civil  and  crim- 
inal, is  allowed  from  the  British  Supreme  Court  in 

^®  Hall,  Foreign  Jurisdiction  of  the  British  Crown,  section  69. 
20  Moore,  Int.  Law  Digest,  II,  pp.  634,  677. 


64  FOREIGNERS  IN  TURKEY 

Constantinople  to  the  Privy  Council  in  London ;  and 
the  execution  of  the  death  penalty  may  not  take  place 
within  Ottoman  jurisdiction.^^  Under  the  Revised 
Statutes,  the  American  Ambassador  in  Constantinople 
is  the  final  court  of  appeal  except  in  cases  involving 
the  infliction  of  the  death  penalty.  The  procedure 
after  conviction,  as  set  forth  in  the  Instructions  to 
Diplomatic  Officers,  is  as  follows : 

224.  Punishments. — In  the  inflictions  of  punishments 
on  persons  convicted  in  consular  courts,  consular  officers 
will  be  governed  by  the  provisions  of  the  statutes  of  the 
United  States  prescribed  for  similar  offenses  and  will  be 
careful  that  the  sentence  in  each  case  is  in  conformity 
thereto.  Consular  courts  have  no  power  to  banish 
American  convicts  to  the  United  States  or  other  coun- 
tries, nor  to  send  them  to  the  United  States,  to  serve  out 
their  terms  of  imprisonment. — i  Whart.  Int.  L.  Dig.,  p. 
805 ;  14  Op.  Att.  Gen.,  522 ;  19  Op.  Att.  Gen.,  377." 

21  Hall,  op.  cit.j  pp.  169-170. 

22  In  regard  to  extradition  Moore  states  (vol.  II,  p.  633)  : 
"With  most  countries  it  has  been  the  rule  to  regard  the  re- 
covery of  their  fugitive  subjects,  charged  with  ordinary  crimes, 
as  an  incident  of  the  extraterritorial  jurisdiction  exercised 
through  their  ministers  or  consuls.  The  United  States,  how- 
ever, has  not  generally  sought  to  enjoy  this  privilege,  but  has, 
on  the  other  hand,  in  two  cases — those  of  the  Ottoman  Empire 
in  1874  and  Japan  in  1876 — entered  into  treaties  of  extradition 
with  the  governments  of  countries  in  which  citizens  of  the 
United  States  were  entitled  to  extraterritoriality."  Moore, 
however,  points  out  that  on  two  different  occasions  the  United 
States  has  extradited  citizens  through  the  exercise  of  extra- 
territorial jurisdiction.  John  H.  Suratt  who  was  charged  with 
complicity  in  the  assassination  of  President  Lincoln,  was  ar- 
rested in  Alexandria,  Egypt,  in  1866,  and  sent  to  the  United 
States  in  an  American  warship.  Henry  Myers  and  J.  F.  Tun- 
stall  of  the  Confederate  cruiser  Sumter  were  also  seized  at. 
Tangiers  and  taken  to  the  United  States. 


JURIDICAL  RIGHTS  65 

225.  Execution  of  Death  Penalty. — The  statutes  pro- 
vide that  in  case  of  a  conviction  entaiHng  the  death  pen- 
alty, it  shall  be  the  duty  of  a  minister  to  issue  his  war- 
rant for  the  execution  of  the  convict,  appointing  the 
time,  place  and  manner;  but  if  the  minister  is  satisfied 
that  the  ends  of  public  justice  demand  it,  he  may  from 
time  to  time  postpone  such  execution.  If  he  finds  miti- 
gating circumstances  which  authorize  it,  he  may  submit 
the  case  to  the  President  for  pardon. — R.  S.,  sec.  4103. 

226.  Requesting  the  President's  Viezvs. — As  the  pro- 
vision of  section  4103  of  the  Revised  Statutes  stands,  it 
appears  to  make  the  diplomatic  representative  the  sole 
judge  of  the  propriety  of  extending  Executive  clemency 
to  the  convict.  It  was  probably  not  the  intent  of  Con- 
gress to  bar  the  exercise  of  the  President's  power  of 
pardon  at  the  discretion  of  a  diplomatic  representative ; 
and  it  would  be  manifestly  improper,  as  well  as  of  doubt- 
ful constitutionality,  to  do  so  in  the  possible  case  of 
conviction  being  had  before  the  officer  whose  duty  it  is 
made  to  execute  the  sentence.  In  cases  coming  under 
this  statutory  provision,  the  Department  of  State  deems 
it  advisable  that  the  diplomatic  representative  should  al- 
ways regard  the  ends  of  public  justice  as  requiring  post- 
ponement of  the  execution  until  the  case  is  reported  and 
copies  of  the  judgment  and  testimony  are  transmitted  to 
the  Department  of  State  and  the  President's  views  in  the 
premises  have  been  received.^^ 

To  summarize  in  a  general  way  the  immunities  of 
jurisdiction  in  cases  involving  foreigners  of  the  same 
nationality,  it  may  be  said  that  jurisdiction  belongs 

28  In  the  case  of  Stephen  P.  Mirzan,  an  alleged  American 
citizen  who  was  accused  of  the  murder  of  one  Alexander 
Dahan  in  the  streets  of  Alexandria,  July  17,  1879,  Minister 
Maynard  tried  Mirzan  and  sentenced  him  to  be  hanged.  Presi- 
dent Hayes  commuted  the  sentence  to  imprisonment  for  life. 
President  Arthur,  in  1882,  directed  that  Mirzan  be  brought  to 
Albany,  New  York,  where  he  remained  until  released  in  1889, 
Moore's  Digest,  II,  pp.  635,  683. 


66  FOREIGNERS  IN  TURKEY 

exclusively  to  the  consular  tribunal  of  the  parties  con- 
cerned ;  that  this  tribunal  follows  such  procedure  as  is 
prescribed  by  its  government;  that  the  law  applied, 
while  in  the  main  that  enforced  in  the  home  land,  is 
not  infrequently  altered  to  harmonize  with  local  cus- 
toms and  usages ;  and  that  the  carrying  out  of  the  law, 
whether  preventive  or  punitive,  varies  greatly  ac- 
cording to  the  legislation  of  each  country,  being  as 
a  rule  much  less  severe  than  would  be  the  case  if  the 
same  offenses  had  been  committed  in  the  countries  to 
which  those  under  conviction  owe  allegiance.^* 

B.    IMMUNITIES  OF  JURISDICTION  IN  CASES  INVOLVING 
FOREIGNERS    OF    DIFFERENT    NATIONALITIES^' 

I.  The  consular  tribunal  of  the  defendant  has  juris- 
diction in  cases  involving  foreigners  of  different 
nationalities. 

The  Porte  has  never  questioned  the  competence  of 
consular  tribunals  to  hear  and  decide  civil  suits  be- 
tween foreigners  of  different  nationalities,^^  though 
it  has  denied  with  reason  that  they  have  exclusive 
jurisdiction,  inasmuch  as  the  parties  concerned  have 
the  right  under  the  Capitulations  to  bring  suit  in  Otto- 

2*  For  a  concise  summary  of  the  immunities  of  jurisdiction  in 
cases  between  foreigners  of  the  same  nationality,  see  Mandel- 
stam,  pp.  265-266;  also  Du  Rausas,  pp.  257-261. 
25  Mandelstam,  pp.  225-250;  Du  Rausas,  pp.  294-411- 
28  This  statement  should  be  qualified  to  the  extent  noted 
above  (p.  53)  as  regards  questions  of  rent,  mortgage,  etc., 
which  relate  to  the  ownership  of  realty  by  foreigners  according 
to  the  provisions  of  Ottoman  law.  These  questions  are  in  a 
sense,  moot  points  on  which  an  understanding  has  not  yet  been 
reached  by  the  Porte  and  the  Powers. 


JURIDICAL  RIGHTS  67 

man  courts.  In  actual  practice,  however,  recourse  is 
not  had  to  such  tribunals ;  and  usage  has  thus  impliedly 
prescribed  the  consular  courts  as  the  proper  tribunals 
in  such  cases. 

In  harmony  with  the  legal  principle  actor  seqidttir 
forum  rei,  it  is  customary  for  the  plaintiff  to  bring 
suit  in  the  consular  court  of  the  defendant.  An  ex- 
ception to  this  rule  is  found  in  the  provisions  of  the 
British  Orders  in  Council  whereby  British  Courts  in 
Turkey  may  assume  jurisdiction  in  cases  where  the 
defendant  is  a  foreigner  who  submits  himself  with 
the  express  consent  of  his  government  to  be  tried 
according  to  the  law  which  is  habitually  administered 
in  said  British  courts.  Ottoman  subjects  have  the 
same  privilege.^^ 

As  has  already  been  observed,  the  Porte  has  never 
disputed  the  jurisdiction  of  consular  courts  in  civil 
suits  between  foreigners  of  different  nationalities. 
Likewise,  previous  to  1881  the  Porte  did  not  deny  the 
competence  of  these  courts  in  criminal  suits  between 
foreigners  of  different  nationalities.  The  right  of 
jurisdiction  in  such  matters,  under  the  Capitulations, 
was  apparently  considered  by  the  Porte  to  be  of  the 
same  character  as  the  right  of  jurisdiction  in  matters 
relating  to  foreigners  of  the  same  nationality.  The 
same  principle  was  involved,  namely,  that  the  Porte 
was  not  concerned  in  any  controversies  between  for- 

27  Hall,  For.  Jurisdiction,  etc.,  pp.  161-163.  Although  British 
courts  in  Turkey  are  competent  to  try  Ottoman  subjects  with 
the  consent  of  the  Porte,  such  a  case  has  never  arisen.  The 
Porte  would  never  give  its  consent  to  a  proceeding  so  deroga- 
tory to  the  sovereignty  of  Turkey. 


68  FOREIGNERS  IN  TURKEY 

eigners,  but  was  concerned  merely  in  questions  af- 
fecting Ottoman  subjects. 

With  the  adoption  of  judicial  reforms,  and  the 
increasing  resentment  of  the  Porte  over  the  encroach- 
ments of  the  exterritorial  system,  the  Turkish  Gov- 
ernment began  in  1881  to  claim  jurisdiction  in  all 
cases  between  foreigners  of  different  nationalities 
where  the  interests  of  the  state  in  resi>ect  to  public 
order  and  morals  might  be  deemed  to  be  involved. 
The  Porte  based  this  claim  legally  on  its  interpretation 
of  the  Capitulations,  notably  Article  52  of  the  treaty 
of  1740  with  France,  which  reserved  to  the  consular 
authorities  jurisdiction  in  "disputes"  between  foreign- 
ers of  different  nationalities.  The  Porte  claimed  that 
the  word  "dispute"  (nica)  referred  simply  to  con- 
tentions of  a  civil  character,  and  that  criminal  ques- 
tions, namely,  murder  (katl),  misdemeanors  {teiih- 
met),  etc.,  involving  public  order  and  morals,  were 
undoubtedly  within  the  exclusive  competence  of  Otto- 
man courts. 

The  Powers  disputed  the  correctness  of  the  Porte's 
interpretation  of  the  Article  in  question;  but  rested 
their  claim  to  exclusive  jurisdiction  on  recognized 
usage,  asserting  that  "the  alienation  of  a  sovereign 
right  may  be  completely  effected  through  tacit  aban- 
donment." The  Porte,  on  the  other  hand,  argued  that 
"sovereign  rights  might  not  be  parted  with  by  non- 
usage"  :  that  "sovereign  rights  are  imprescriptible." 
etc.28 

28  Mandelstam,  p.  250.     See  also  pages  225-250  for  a  masterly 
presentation  of  the  merits  of  this  controversy. 


JURIDICAL  RIGHTS  69 

It  does  not  appear  that  the  claims  of  either  the 
Porte  or  the  Powers  are  either  expressly  supported  or 
disproved  by  the  Capitulations.  The  position  of  the 
Porte  seems  to  be  clearly  sustained  through  its  inherent 
rights  as  territorial  sovereign  to  be  concerned  with  all 
that  pertains  to  public  order  and  morals.  But  the 
acquiescence  of  the  Ottoman  authorities  in  the  exclu- 
sive jurisdiction  of  the  Powers  in  all  questions  between 
foreigners  of  different  nationalities  over  so  long  a  pe- 
riod of  time  would  sem  to  have  amounted  virtually 
to  an  abandonment  of  its  sovereign  rights  of  jurisdic- 
tion in  such  cases. 

2.  Courts  and  Procedure 

In  suits  involving  foreigners  of  different  nationali- 
ties the  same  courts  are  resorted  to  and  the  same 
procedure  employed  as  in  cases  involving  foreigners 
of  the  same  nationality.  A  peculiarity  of  this  system, 
however,  is  found  in  the  fact  that  the  defendant  may 
not  bring  a  cross-suit  in  his  own  consular  court  but 
must  sue  in  the  court  of  the  plaintiff.  In  case  the 
competent  court  of  appeal  annuls  the  decision  of  the 
court,  the  defendant  wdio  may  have  been  falsely  ac- 
cused and  wrorfgly  condemned  is  thus  quite  likely  to 
have  his  petition  for  a  cross-suit  rejected  by  the  con- 
sular court  of  the  original  plaintiff.-" 

^-4.  Laiv  Administered.  Execution  of  Law 

The  law  enforced  and  the  penalties  inflicted  in  suits 
involving  foreigners  of  different  nationalities  are  the 

29  I>u  Rausas,  p.  407. 


yo  FOREIGNERS  IN  TURKEY 

same  as  in  suits  involving  foreigners  of  the  same  na- 
tionality except  in  the  following  instances  indicated 
by  Du  Rausas:^** 

Usage,  whose  legal  value  and  liberalism  it  is  difficult 
to  challenge,  has  established  the  following  rules.  The 
law  to  be  applied,  in  principle,  is  that  of  the  state  in 
whose  name  the  tribunal  resorted  to  dispenses  justice, 
that  is  to  say,  specifically,  the  national  law  of  the  de- 
fendant, and  in  matters  relating  to  inheritance,  the 
national  law  of  the  deceased.  This  law,  however,  ceases 
to  be  applicable  in  three  instances:  (i)  When  it  is  a 
question  of  determining  the  status  and  legal  capacity  of 
the  foreigner  as  plaintiff:  the  law  to  be  applied  then  is 
the  national  law  of  that  foreigner;  (2)  when  it  is  a 
question  of  determining  the  validity  of  a  juridical  act, 
or  when  it  is  a  question  of  interpreting  an  agreement 
and  determining  the  effects  of  said  act  or  agreement: 
the  law  to  be  applied  is  then  the  territorial  law,  whether 
the  written  law  or  local  customs,  in  conformity  with  the 
rule  locus  regit  actum  and  with  the  rule  of  (legislative) 
freedom  of  will  (I'autonomie  de  volonte)  ;  (3)  when, 
even  outside  of  cases  of  the  application  of  the  rule  locus 
regit  actum  and  the  rule  of  (legislative)  freedom  of 
will,  the  law  of  the  tribunal  concerned  is  in  opposition 
to  the  local  customs;  for  reasons  which  we  have  pre- 
viously indicated,  the  local  customs  have  force  of  law  in 
the  Ottoman  Empire  and  should  be  applied  even  wheni 
they  are  in  derogation  of  the  law  of  the  state  in  whose 
name  the  consular  tribunal  concerned,  dispenses  justice. 

In  addition  to  these  judicial  functions,  consular  of- 
ficials in  Turkey  are  usually  empowered  to  perform 
acts  of  a  juridical  nature  where  foreigners  of  different 
nationalities  are  concerned,  as  for  example  notarial 
acts,  and  the  celebration  of  the  marriage  ceremony. 

The  powers  of  the  various  consuls  differ  considera- 

30/fcirf.,  p.  407. 


JURIDICAL  RIGHTS  71 

bly  in  these  respects.  For  example,  Italian  law  au- 
thorizes Italian  Consuls  to  solemnize  marriages  where 
both  parties  are  Italian  subjects  or  the  husband  alone 
is  of  Italian  nationality.^^  British  Consular  officials 
are  empowered  to  solemnize  marriages  between  British 
subjects,  or  when  one  of  the  persons  is  a  British 
subject.^^  American  Consular  officials,  however,  have 
no  authority  to  perform  the  marriage  ceremony,  though 
strange  to  say  they  may  exercise  jurisdiction  in  ques- 
tions of  divorce. ^^ 

To  summarize  existing  usage  under  the  Capitula- 
tions concerning  foreigners  of  different  nationalities, 
the  consular  tribunal  of  the  defendant  has  jurisdiction 
as  a  rule  in  all  civil  suits.  In  criminal  suits,  the  same 
tribunal  likewise  exercises  jurisdiction,  though  the 
Porte  has  unsuccessfully  maintained  that  Ottoman 
courts  should  have  jurisdiction  in  such  cases  whenever 
public  order  or  morals  are  involved.  The  courts  and 
procedure  in  such  cases,  with  slight  variations,  are 
the  same  as  in  cases  between  foreigners  of  the  same 
nationality.  The  law  enforced  and  the  penalties  in- 
flicted are  likewise  the  same,  though  the  lex  loci  is 
frequently  applicable  in  preference  to  the  national  law 
of  the  defendant.  Consular  officials  have  also  certain 
extra-judicial  functions  such  as  the  drawing  up  of 
legal  instruments  and  the  solemnization  of  marriages. 

3^  Du  Rausas,  p.  409. 

32  Hall,  For.  Jurisdiction,  etc.,  p.  87. 

^s  United  States  Consular  Regulations,  1897,  sections  417-422. 


THE  JURIDICAL   RIGHTS    OF 
FOREIGNERS  (Continued) 


CHAPTER  IV 
The  Juridical  Rights  of  Foreigners  (Continued) 

c.  immunities  of  jurisdiction  in  matters  affect- 
ing BOTH  foreigners  AND  OTTOMAN  SUBJECTS^ 

I.  Ottoman  tribunals  have  jurisdiction  in  cases  in- 
volving  foreigners  and  Ottoman  subjects  except  in 
matters  relating  to  the  personal  status  of  the  former."^ 

The  early  Capitulations,  particularly  the  French 
Capitulations  of  1740  (Articles  26  and  65),  left  hardly 
any  doubt  as  to  the  intention  of  the  Porte  to  reserve 
to  itself  jurisdiction  in  all  matters  between  natives  and 
foreigners,  or  in  the  case  of  offenses  against  the  state. 

1  Mandelstam,  pp.  49-208,  251-255;  Du  Rausas,  pp.  412-443; 
Young,  Corps  de  Droits  etc.,  pp.  251-278. 

2  The  exceptions  noted  include  inheritance  and  bankruptcy 
which  by  some  curious  analogy  are  grouped  together  and  con- 
sidered within  the  province  of  the  consular  courts  because  in- 
volving questions  of  personal  status.  The  power  to  settle  the 
estates  of  deceased  foreigners  is  assimilated  to  the  power  to 
settle  the  affairs  of  bankrupt  foreigners.  The  execution  of  the 
decisions  of  consular  tribunals  in  this  respect  is  left  to  the 
Ottoman  tribunals.  As  has  already  been  pointed  out  (page  42) 
foreigners  hold  real  estate  subject  to  Ottoman  law  and  juris- 
diction. Wherever  the  personal  status  of  the  foreigner  is  in- 
volved, however,  such  questions  may  be  deferred'  to  the  compe- 
tent consular  court.  Here  exists  a  conflict  of  jurisdiction  of 
serious  import  but  not  of  actual  moment  for  the  purpose  of 
the  present  discussion. 

75 


76  FOREIGNERS  IN  TURKEY 

As  already  pointed  out,  however,  the  settlement  of 
an  ever  increasing  number  of  judicial  questions 
through  diplomatic,  extra-judicial  negotiations  with  the 
"Imperial  Divan"  proved  to  be  a  cumbrous,  and  en- 
tirely unsatisfactory  procedure.  The  absence  of  reliable 
Turkish  courts,  as  well  as  the  lack  of  a  code  of  laws 
applicable  to  foreigners,  led  the  different  consular 
tribunals  during  the  first  half  of  the  nineteenth  cen- 
tury to  assume  jurisdiction  over  cases  involving  their 
own  nationals  when  defendants  in  suits  brought  by 
Ottoman  subjects.  But  with  the  formation  of  proper 
courts  and  the  promulgation  of  adequate  commercial 
and  penal  codes  under  the  judicial  reforms  of  1840, 
1847,  1850,  i860,  1867,  and  1879,  the  Porte  gradually 
resumed  its  jurisdiction  in  such  cases,  having  secured 
the  formal  consent  or  the  tacit  acquiescence  of  the 
other  nations  excepting  the  United  States,  Belgium, 
and  Portugal. 

The  treaties  signed  by  Turkey  with  the  United 
States,  Belgium,  and  Portugal  in  1830,  1838,  and  1843, 
respectively,  all  contained  a  like  provision  whose  gen- 
eral purport,  in  contrast  with  the  early  Capitulations, 
was  apparently  to  grant  to  the  consular  tribunals  of 
these  three  countries  absolute  criminal  jurisdiction 
over  their  own  nationals  without  any  reservations  what- 
ever as  to  arrest,  trial,  and  punishment. 

Article  IV  of  the  American  treaty  of  1830,  ac- 
cording to  the  English  version  officially  maintained  by 
the  United  States  against  the  French  version  upheld 
by  the  Porte,  reads  in  part  as  follows  :^ 

3  Moore's  Digest,  II,  p.  701.    For  a  resume  of  the  official  cor- 


JURIDICAL  RIGHTS  'j'j 

.  .  .  Citizens  of  the  United  States  of  America,  quietly 
pursuing  their  commerce,  and  not  being  charged  or  con- 
victed of  any  crime  or  offense,  shall  not  be  molested ;  and 
even  when  they  may  have  committed  some  offense  they 
shall  not  be  arrested  and  put  in  prison,  by  the  local 
authorities,  but  they  shall  be  tried  by  their  Minister  or 
Consul,  and  punished  according  to  their  offense,  follow- 
ing, in  this  respect,  the  usage  observed  towards  other 
Franks. 

The  French  version  of  Article  IV,  according  to 
the  Turkish  Government,  is  as  follows : 

Les  citoyens  Americains  vaquant  paisiblement  aux  af- 
faires de  leur  commerce  ne  seront  point  molestes  sans 
motif  tant  qu'ils  n'auront  pas  commis  quelque  delit  ou 
quelque  faute;  meme  en  cas  de  culpabilite,  ils  ne  seront 
pas  imprisonnes  par  les  juges  et  les  agents  de  la  surete, 
mais  ils  seront  punis  par  les  soins  de  leur  ministre  et 
consul  a  I'instar  de  ce  qui  se  pratique  a  I'egard  des  autres 
Francs. 

The  official  translation  of  this  Article  as  given  in 
Secretary  Blaine's  note^  of  December  22,  1890,  to  Min- 
ister Hirsch  reads : 

American  citizens  peaceably  attending  to  matters  of 
commerce  shall  not  be  molested  without  cause  or  fault. 
Even  in  case  of  culpability  they  shall  not  be  imprisoned 
by  the  judges  and  police  agents,  but  they  shall  be  pun- 
ished through  the  agency  of  their  ministers  and  consuls, 
according  to  the  practice  observed  in  regard  to  other 
Franks. 

The  serious  divergence  between  these  English  and 
French   versions   of   the   Turkish  text,   which   alone 

respondence    between    Turkey    and    the    United    States    on    the 
subject  of  the  arrest,  trial,  and  punishment  of   Americans,  see 
Moore,  II,  pp.  668-772. 
*  Ibid.,  p.  701. 


78  FOREIGNERS  IN  TURKEY 

should  be  held  as  authoritative,  has  rendered  an  ad- 
justment of  the  controversy  extremely  difficult.  Mr. 
Frelinghuysen,  Secretary  of  State,  fairly  expressed 
the  rcdiictio  ad  absurdum  of  the  Turkish  contention  as 
follows :° 

So  far  as  the  Turkish  position  may  be  inferred  from 
what  has  been  said  heretofore,  it  implies  contention  for 
four  alternate  stages  of  procedure,  viz: 

(a)  The  Turks  to  arrest  (which  is  expressly  forbidden 
by  the  Capitulations). 

(b)  The  minister  to  imprison. 

(c)  The  Turks  to  try  the  accused  in  the  presence  of 
their  minister  or  consul  (but  without  the  latter  exercising 
any  of  the  "instrumentality"  which  the  treaty  of  1830  ad- 
mittedly reserved  to  them)  ;  and 

(d)  The  minister  or  consul  to  "punish"  in  accordance 
with  the  offense  (although  all  instrumentality  in  fixing 
a  punishment  is  denied  to  the  minister  or  consul). 

It  would  serve  no  particular  purpose  to  go  into  the 
details  of  this  long  diplomatic  logomachy  in  which 
the  advantage  would  seem  to  have  remained  on  the 
side  of  the  United  States.^*    The  Department  of  State, 

'^  Ibid.,  p.  696. 

f**  While  the  United  States  has  had  the  better  of  the  argument 
in  this  controversy,  it  suffered  a  severe  defeat  in  the  test  case 
of  Charles  Vartanian  and  Hovhanes  Afarian,  naturalized 
American  citizens  of  Ottoman  origin  who  were  arrested  and 
tried  by  the  Turkish  authorities  in  1905  on  the  charge  of  killing 
a  rich  Armenian  merchant  in  Constantinople.  The  Sublime 
Porte  refused  the  demand  of  the  United  States  for  a  stay  in 
the  proceedings  pending  a  diplomatic  adjustment  of  the  whole 
question  of  Article  IV,  as  well  as  the  peremptory  demand  that 
the  accused  be  handed  over  to  the  American  Consulate-Gen- 
eral for  trial  and  punishment.  The  men  were  tried  and  sen- 
tenced without  the  presence  at  the  trial  of  the  American  drago- 
man,   Vartanian    being    condemned    to    death    and    Afarian    to 


JURIDICAL  RIGHTS  79 

however,  has  been  willing  to  make  the  substantial  con- 
cession of  trial  by  Ottoman  courts,  as  in  the  case  of 
other  foreigners,  though  reserving  the  right  to  punish.® 
At  the  time  the  Porte  entered  into  the  treaties  with 
the  United  States,  Belgium,  and  Portugal,  the  recog- 
nized usage  concerning  foreigners  accused  of  crime  by 
Ottoman  subjects  was  that  jurisdiction  in  such  cases 
belonged  to  the  consular  tribunals.  These  separate 
treaties  amounted,  therefore,  to  nothing  less  than  a 
formal  and  solemn  recognition  of  existing  usage.'^  As 
impartial  and  reliable  an  authority  as  Andre  Mandel- 
stam,  formerly  First  Dragoman  of  the  Russian  Em- 
bassy in  Constantinople,  fully  sustains  this  point  of 
view.* 

If  our  opinions  (says  Mandelstam)  as  to  the  Turkish 
text  of  Article  IV  of  the  treaty  of  1830,  be  accepted,  the 

fifteen  years'  imprisonment  at  hard  labor.  Owing  to  the  vigor- 
ous representations  of  the  American  Embassy,  the  Porte  did 
not  permit  the  sentence  against  Vartanian  to  be  carried  out. 
The  United  States  allowed  the  matter  to  rest  in  this  form. 
As  the  issue  was  clearly  drawn,  the  result  was  most  unfortu- 
nate in  that  it  revealed  that  the  United  States  was  not  prepared 
to  insist  in  actual  practice  on  what  it  claimed  in  principle.  See 
Foreign  Relations  of  the  United  States,  1905,  p.  885. 

''Ibid.,  p.  703. 

^  Mandelstam,  pp.  146-151. 

®  Ibid.,  p.  163.  For  an  excellent  analysis  of  this  whole  ques- 
tion, see  same  author,  pp.  152-174.  Mandelstam  treats  of  the 
Turkish  treaty  of  1823  with  Sardinia,  and  the  treaty  of  1839 
with  the  Hanseatic  towns,  containing  similar  provisions  to  those 
of  the  treaties  with  the  United  States,  Belgium  and  Portugal. 
As  both  Italy  and  Germany  have  allowed  any  alleged  rights 
under  the  two  treaties  mentioned  to  lapse,  they  have  not  any 
value  for  the  purpose  of  this  discussion  except  to  confirm  the 
usage  in  respect  to  Franks  at  the  time  the  three  other  treaties 
were  made. 


8o  FOREIGNERS  IN  TURKEY 

question  relative  to  the  nature  of  the  final  clause  'ac- 
cording to  the  practice  observed  in  regard  to  other 
Franks,'  solves  itself.  The  Turkish  text,  as  moreover 
the  French  text  of  this  Article,  should  not  be  considered 
as  constituting  a  general  most-favored-nation  clause.  The 
final  reference  of  that  text  is  only  an  illustration,  an  ex- 
ample. It  does  not  purport  to  make  American  rights  de- 
pend on  French  rights ;  after  having  described  and  speci- 
fied American  rights,  it  simply  shows  that  the  other 
Franks  enjoyed  these  rights  at  that  time.  It  is  in  no  way 
a  most-favored-nation  clause  which  would  render  the 
privileges  conferred  by  Article  IV  uncertain,  varying 
with  the  usage  of  other  Franks.  Article  IV  established 
an  original  and  immutable  American  right, 

Mandelstam  further  states  his  belief  that  the  other 
nations  through  long  acquiescence  in  respect  to  Otto- 
man jurisdiction  over  foreigners  accused  of  crime  by 
Turkish  subjects,  have  forfeited  any  right  to  claim 
under  the  most-favored-nation  clause  the  same  privi- 
leges claimed  by  the  United   States,  Belgium,^'  and 

8"  An  interesting  test  case  between  Turkey  and  Belgium  arose 
in  1905,  the  same  year  of  the  test  case  between  the  United 
States  and  Turkey  (note  S"),  in  the  arrest  and  condemnation  of 
Charles  Edouard  Joris,  a  Belgian  subject,  by  the  Turkish  au- 
thorities at  Constantinople,  on  the  charge  of  an  attempt  on  the 
life  of  the  Sultan.  "Joris  was  assisted  at  the  trial  before  the 
criminal  court  by  a  representative  of  the  Belgian  Legation,  who 
refused  to  join  in  the  judgment  of  the  court.  After  judgment 
the  Belgian  Legation  demanded  that  Joris  be  hand«d  over  to  the 
Belgian  Government  for  trial  before  the  court  of  assize  of 
Brabant,  which  has  jurisdiction,  under  Belgian  law,  'over  crimes 
committed  by  Belgians  in  non-Christian  countries.'  The  Turk- 
ish Government  refused  to  comply  with  this  demand,  and  has 
maintained  its  attitude,  notwithstanding  the  repetition  of  the 
Belgian  demand."  {American  Journal  of  International  Law, 
vol.  I,  p.  485,  1907.)  The  case  was  finally  disposed  of  by  the 
action  of   the   Porte  in   releasing  Joris  and  permitting  him  to 


JURIDICAL  RIGHTS  8l 

Portugal.  But  he  believes  that  in  case  Ottoman  jus- 
tice should  prove  hopelessly  inadequate  and  unsuited 
for  foreigners,  these  privileges  might  aflford  by  way 
of  precedent  considerable  moral  support  to  other  na- 
tions desiring  to  withdraw  their  nationals  from  the 
jurisdiction  of  Turkish  courts.^ 

Whatever  may  be  the  special  privileges  obtained  by 
the  United  States,  Belgium,  and  Portugal,  through 
their  treaties  with  Turkey,  it  seems  reasonably  clear 
that  general  usage  and  simple  equity  recognizes  the 
right  of  the  Porte  in  the  exercise  of  territorial  sov- 
ereignty to  jurisdiction  (with  certain  restrictions  such 
as  the  assistance  of  foreign  assessors  and  consular 
dragomans)  in  all  cases,  civil  and  criminal,  involving 
foreigners  and  Ottoman  subjects.  The  United  States 
has  been  prepared  to  concede  as  much  ;^*^  and  the  ques- 
tion at  issue  should  be  susceptible  of  amicable  and 
satisfactory  adjustment. 

2.  Courts  and  Procedure'^^ 
The  Ottoman  tribunals  competent  to  assume  juris- 
diction in  cases  involving  both  foreigners  and  natives, 
or  in  cases  of  crime  against  the  state,  are  the  following: 

leave  the  country.  Professor  Politis  of  the  University  of  Paris 
in  an  article  in  the  Revue  de  droit  international  prive  (vol.  II, 
p.  659),  attacks  the  claims  of  Belgium  to  jurisdiction  in  this 
and  similar  cases,  asserting  that  neither  treaties  or  usage  pre- 
vent jurisdiction  by  the  Turkish  courts. 

8  Mandelstam  p.  173. 

*"  Moore,   II,  p.  702. 

^^  For  the  laws,  regulations  and  special  provisions  relating  to 
Ottoman  courts,  and  to  the  juridical  privileges  of  foreigners, 
see  Young,  Corps  de  Droit,  etc.,  vol.  I,  chapters  VII  to  XV 
inclusive. 


82  FOREIGNERS  IN  TURKEY 

(a)  The  "Tribunaux  correctionnels"  (to  employ 
the  designation  borrowed  from  the  French  judicial 
system)  are  competent  to  try  with  the  assistance  of 
the  consular  dragoman  any  foreigner  charged  with 
a  crime  or  misdemeanor  against  an  Ottoman  subject, 
or  against  the  state. 

(b)  The  tribunals  designated  in  Turkish  as  Nisa- 
mich  are  competent  to  try :  ( i )  all  realty  suits  con- 
cerning a  foreigner  without  the  presence  of  a  drago- 
man at  the  trial;  (2)  all  questions  of  rent,  if  the 
owner  is  a  foreigner,  without  the  presence  of  the 
dragoman;  (3)  all  civil  suits  between  a  foreigner  and 
a  native  not  involving  a  sum  exceeding  a  thousand 
piasters  ($44.00),  the  dragoman  being  present. 

(c)  The  Mixed  Tribunals,  otherwise  known  as 
Commercial  Tribunals,  composed  of  three  Ottoman 
judges  and  two  foreign  assessors  assisting  at  the  trial 
together  with  the  consular  dragoman,  have  jurisdiction 
in  respect  to  all  commercial  litigations  between  an 
Ottoman  subject  and  a  foreigner,  or  any  civil  suit 
where  the  sum  involved  exceeds  one  thousand  piasters. 
Appeal  from  the  decisions  of  the  Mixed  Tribunals 
outside  of  Constantinople  may  be  taken  to  the  Mixed 
Tribunal  in  the  capital. 

The  three  classes  of  courts  above  indicated  do  not 
exist  uniformly  throughout  Turkey.  In  certain  locali- 
ties the  Mixed  Commercial  Tribunals  or  their  equiva- 
lents have  been  suppressed.  In  such  cases,  commercial 
disputes  are  brought  before  the  competent  civil  tri- 
bunals {Nisamiehy^  with  final  appeal  to  the  Mixed 

12  The  Nisamieh  tribunals  when  trying  commercial  questions 


JURIDICAL  RIGHTS  83 

Tribunals  in  Constantinople  when  the  amount  involved 
exceeds  a  thousand  piasters. 

As  previously  pointed  out/-"  foreigners  residing  in 
places  more  than  nine  hours  distant  from  their  consular 
officials,  are  not  entitled  to  precisely  the  same  privi- 
leges as  foreigners  within  the  nine-hour  zone.  They 
are  deprived  of  the  assistance  of  the  consular  drago- 
man though  they  retain  the  right  of  appeal  where  the 
amount  involved  exceeds  one  thousand  piasters. 

As  to  the  presence  of  foreign  assessors^^  in  the 
Mixed  Tribunals,  these  functionaries  are  designated 
by  their  respective  Embassies  and  Legations  for  vary- 
ing periods  of  service,  and  cannot  be  considered  as 
judicial  officials  in  the  strict  sense.  Their  functions 
are  largely  extra-judicial  in  character.  When  the  de- 
cision of  the  three  Ottoman  judges  may  be  contrary  to 
the  opinion  of  the  two  foreign  assessors,  the  latter  as 
a  rule  merely  register  their  dissent  in  signing  the  pro- 
ces-verhcU.  If  they  refuse,  however,  for  exceptional 
and  powerful  motives  to  acquiesce  in  the  decision,  it 
then  becomes  necessary  to  leave  the  matter  to  diplo- 
matic adjustment  through  the  medium  of  the  Ministry 
of  Justice  and  the  Sublime  Porte, — a  procedure  which 
cannot  fail  to  be  most  unsatisfactory  whatever  the 
result. 

of  this  character  are  authorized  to  allow  foreign  assessors  to 
assist  in  accordance  with  the  practice  of  the  Mixed  Tribunals 
in  this  respect.  (Young,  I,  p.  243.)  The  Porte  does  not  recog- 
nize the  right  of  foreigners  to  insist  that  foreign  assessors  be 
summoned  in  such  suits,  but  has  often  been  compelled  to  con- 
cede in  practice  what  it  denies  in  principle. 

i2»  See  page  45  supra. 

^*  Mandelstam,  pp.  77-82, 


84  FOREIGNERS  IN  TURKEY 

The  Porte  for  a  time  objected  to  the  presence  of  a 
foreign  assessor  of  a  nationaHty  different  from  that 
of  the  foreigner  party  to  the  suit,  but  afterwards  with- 
drew its  objection  when  it  became  evident  that  in  some 
instances  a  competent  assessor  of  the  same  nationaHty 
would  not  be  available.^* 

The  original  Capitulations  guaranteed  the  right  of 

a  foreigner  to  the  assistance  of  his  ambassador,  consul, 

or  of  their  representative,  the  dragoman,  in  all  trials 

before  the  Ottoman  courts. ^^     What  was  meant  by 

"assistance,"  however  was  never  well  defined,  and  the 

Porte,  while  making  a  virtue  of  a  necessity,  has  long 

denied  the  right  of  the  dragoman  to  exercise  certain 

powers   which  that   official   has   accumulated   in   the 

course  of  time.    Du  Rausas  remarks  in  this  connection 

that: 

.  .  .  the  extent  of  the  powers  of  the  dragoman  varies 
every  day ;  it  varies  with  the  consulates,  with  the  drago- 
mans themselves;  it  depends  upon  the  relations  which 
the  ambassador  of  this  or  that  Power  maintains  with  the 
Porte,  of  the  attitude  more  or  less  favorable  to  foreign- 
ers which  the  president  of  this  or  that  tribunal  may  hold, 
sometimes  also  of  the  ability  demonstrated,  or  of  the  per- 
sonal sympathy  which  this  or  that  consul  or  dragoman 
may  inspire.^** 

Without  attempting  to  discuss  the  merits  of  the 
controversy  between  the  Powers  and  the  Porte  con- 
cerning the  functions  of  the  dragoman,  we  may  take 
note  of  the  ordinary  usage  followed  in  this  respect,  as 
set  forth  by  Du  Rausas. 

1*  Young,  op  cit.,  I,  p.  243. 

15  Mandelstam,  pp.  82-94.     Also  supra  p.  2^. 

18  Du  Rausas,  p.  438. 


JURIDICAL  RIGHTS  85 

The  mission  of  the  dragoman  is  not  simply  that  of  an 
interpreter;  it  is  a  mission  of  control  and  surveillance. 
This  being  admitted,  it  is  very  evident  that  it  is  necessary 
to  give  to  the  dragoman  the  practical  means  of  fulfilling 
efficaciously  his  mission  of  control  and  surveillance. 
These  means  are,  and  cannot  be  otherwise  than  the  power 
recognized  in  the  dragoman  to  stop  the  proceedings,  as 
the  case  may  be,  or  prevent  the  execution  of  the  decision. 
Hence  the  necessity  of  the  vise  and  the  signature:  they 
must  be  affixed  to  all  important  papers  in  the  proceedings, 
that  is  to  say,  in  a  civil  suit,  to  the  original  complaint,  to 
the  records  of  the  investigation  and  examination  (into  the 
facts),  to  the  final  sentence;  and  in  criminal  suits,  to  the 
summons  to  appear  before  the  examining  magistrate,  to 
the  records  of  the  examination  (of  the  person  accused), 
or  of  the  hearing  of  witnesses,  to  the  rulings  of  the 
magistrate,  and  finally,  to  the  sentence  of  condemnation. 
.  .  .  The  presence  of  the  dragoman,  indicated  by  his 
vise  and  signature,  is  a  guarantee  of  the  validity 
of  the  proceedings  and  of  the  sentence.  If,  then, 
the  vise  and  the  signature  of  the  dragoman  do  not 
appear  on  a  document  where  they  normally  should 
appear  in  the  proceedings,  this  document  is  inap- 
plicable to  the  foreigner,  with  the  result  that  the  trial 
may  not  begin,  or  is  terminated.  Especially,  if  the  vise 
and  the  signature  of  the  dragoman  do  not  appear  on  the 
order  for  arrest  issued  against  a  foreigner,  or  on  the 
sentence  of  conviction  pronounced  against  a  foreigner, 
that  order  and  that  sentence  may  not  be  carried  out.^^ 

From  the  foregoing  excellent  summary  it  may 
readily  be  appreciated  how  many  occasions  for  con- 
tention and  friction  may  arise  between  the  dragoman 
and  the  Ottoman  authorities;  how  the  normal  course 
of  justice  may  be  unreasonably  interrupted  at  times; 
and  finally,  how  thoroughly  objectionable  to  the  Turks 
must  be  this  autocratic  control  over  their  courts,  es- 

1^  Ibid.^  pp.  439-440. 


86  FOREIGNERS  IN  TURKEY 

pecially  when  exercised  by  subordinate  foreign  officials 
not  always  well  versed  in  local  laws  and  customs.  To 
such  an  extent  is  this  control  carried  that  the  Turkish 
Government  is  unable  to  carry  out  the  decrees  of  the 
Cour  de  Cassation,  the  supreme  judicial  tribunal  of 
the  Empire,  owing  to  the  fact  that  the  Powers  refuse 
to  acknowledge  its  jurisdiction  over  foreigners  with- 
out the  assistance  of  the  dragoman  at  the  trial. 

For  the  sake  of  justice,  as  well  as  out  of  respect  to 
the  rights  of  territorial  sovereignty,  whenever  it  may 
be  shown  that  the  rights  of  foreigners  to  a  fair  trial 
are  properly  protected,  it  would  seem  of  the  utmost 
importance  that  the  Porte  should  secure  the  consent 
of  the  Powers  to  an  extensive  curtailment  of  the  su- 
pervisory control  of  the  dragoman  over  Ottoman 
courts. 

One  other  fact  to  be  noted  in  respect  to  the  pro- 
cedure in  Ottoman  courts  is  that  suits  brought  against 
Turkish  subjects  by  foreigners  are  commenced  through 
the  medium  of  the  proper  diplomatic  or  consular  of- 
ficials. This  is  done  by  the  dragoman  who  presents 
to  the  Mixed  Tribunal  the  charges  duly  translated  into 
Turkish.  This  tribunal  must  likewise  employ  the 
same  agency  in  order  to  notify  foreigners  of  sum- 
monses and  sentences  of  the  courts.  In  such  cases 
the  legal  delays  for  appeal,  etc.,  date  from  the  day 
when  the  consulate  receives  the  notification  in  ques- 
tion.^^  Following  the  rule  laid  down  by  the  early 
Capitulations,  all  evidence  of  transactions  on  which 

^8  Young,  I,  p.  246. 


JURIDICAL  RIGHTS  87 

suits  are  based  must  be  presented  to  the  Mixed  Tribu- 
nal in  writing.  Charges  based  on  oral  testimony- 
may  not  be  entertained.^^ 

J.  The  Law  Administered  -^ 

The  law  lying  at  the  base  of  all  laws  in  Turkey  is 
the  Sheri,  the  Moslem  sacred  law,  which  in  theory 
cannot  countenance  any  legislation  contrary  in  any 
respect  to  its  precepts.  However,  when  the  system 
of  mixed  commercial  tribunals  was  adopted  in  1848 
with  the  consent  of  the  Powers,  a  commercial  code 
was  adopted  (two  years  later)  ;  an  appendix  to  the 
code  was  published  in  i860;  a  code  of  commercial 
procedure,  in  1862 ;  and  finally,  a  maritime  commercial 
code,  in  1864, — all  with  the  approval  of  the  Powers. 
These  codes  were  drawn  for  the  most  part  from  the 
French  commercial  codes  though  in  a  very  defective 
manner.  The  Mixed  Tribunals  when  endeavoring  to 
supply  the  deficiencies  of  the  Ottoman  commercial 
code  had  recourse  to  the  principles  of  the  French 
code.  But  with  the  adoption  of  the  Ottoman  civil 
code,  the  Medjelle,  in  1868, — a  code  compiled  mainly 
from  the  Sheri, — the  Mixed  Tribunals  began  to  have 
recourse  to  this  body  of  law.  The  Medjelle,  based 
as  it  was  on  the  sacred  law,  is  not  in  harmony  in  all 
respects  with  the  principles  of  the  codes  drawn  from 
French  sources.  It  does  not  recognize  for  example 
the  element  of  usury  in  commercial  enterprises. 

19  Ibid. 

2*>  As  to  the  law  applied  in  mixed  suits  in  Ottoman  tribunals, 
see  Mandelstam,  pp.  1-60,  96-1 11,  206-208. 


88  FOREIGNERS  IN  TURKEY 

The  Powers  have  insisted  that  inasmuch  as  the 
Ottoman  commercial  code  is  based  on  the  theory  and 
principles  of  the  French  code,  any  defects  in  the 
former  should  be  supplied  from  the  original  source. 
The  Powers,  moreover,  deny  to  the  Porte  the  right 
to  amend  the  commercial  code  without  their  consent. 
The  result,  as  may  readily  be  conceived,  is  that  there 
exists  a  most  serious  divergence  of  views  as  to  the 
law  to  be  applied  in  the  Mixed  Courts.  It  would  seenT 
obvious,  as  insisted  by  Mandelstam,  that  an  under- 
standing on  this  subject  between  the  Porte  and  the 
Powers  is  indispensable.-* 

The  law  which  is  applied  in  the  civil  and  criminal 
courts  in  cases  involving  foreigners,  is  that  contained 
in  the  civil  and  criminal  codes,  and  in  the  regulations 
relative  to  the  enforcement  of  the  decrees  of  the 
courts,  promulgated  by  the  Porte  in  1879.  Though 
based  largely  on  French  laws,  these  codes  and  regula- 
tions have  never  been  approved  by  all  the  Powers 
because  of  the  fact  that  they  contain  features  con- 
sidered inapplicable  to  foreigners,  such  as  for  example 
imprisonment  for  debt.  Wherever  these  codes  are 
defective,  the  tendency  of  the  Turkish  courts  is  to 
have  recourse  to  the  Sheri. 

It  should  always  be  borne  in  mind  that  the  Ottoman 
tribunals  are  subjected,  in  their  application  of  law 
in  the  case  of  foreigners  to  the  restraining  influence 
of  the  foreign  assessors  and  the  consular  dragoman, 

21  Mandelstam,  p.  11 1. 


JURIDICAL  RIGHTS  89 

4.  Execution  of  Law  ^^ 

The  actual  practice  observed  in  regard  to  the  carry- 
ing out  of  the  decisions  of  Ottoman  courts  in  com- 
mercial and  civil  suits  cannot  be  more  clearly 
summarized  than  in  the  words  of  Mandelstam. 

In  respect  to  the  execution  of  the  decisions  of  Otto- 
man courts  rendered  against  foreigners,  there  are  .  .  . 
five  different  systems.  One  group  of  nations,  Russia 
and  Austria-Hungary,  proceed  to  the  execution  of  these 
decisions  through  the  medium  of  their  own  consulates 
and  according  to  their  own  laws  in  respect  to  the  execu- 
tion of  decisions.  A  second  group  of  states,  France, 
Belgium,  and  the  United  States,  permit  the  carrying  out 
of  Turkish  decisions  according  to  Ottoman  law,  except 
in  those  cases  where  it  is  in  flagrant  opposition  to  the 
law  of  the  foreigner,  as  in  the  matter  of  physical  con- 
straint. A  third  group  of  states,  Germany,  Italy,  and 
Roumania,  authorize  the  execution  of  decisions  by  the 
agency  of  their  consulates,  applying  the  Ottoman  law 
even  when  it  is  contrary  to  their  national  laws.  A  fourth 
system,  adopted  by  England,  leaves  the  execution  of  de- 
cisions in  the  hands  of  the  Ottoman  authorities.  The 
fifth  system,  finally,  which  is  that  assigned  to  Greece  by 
the  arbitral  award  of  1901,^^'  recognizes  the  right  of  ex- 
ecution of  decisions  by  the  consular  authorities,  save  to 
cause  the  right  to  revert  to  the  local  authorities  after  a 
certain  delay.  .  .  .  The  execution  of  the  decisions  of  Otto- 
man courts  against  Ottoman  subjects  and  in  favor  of 
foreign  subjects  belongs  indisputably  to  the  Ottoman 
authorities.^^ 

In  regard  to  the  arrest  and  detention  of  foreigners 
accused  of  crimes  before  the  Ottoman  courts,  it  may 
be  said  that  most  of  the  Powers,  while  differing  as  to 

22/&i(f.,  pp.  138-144,  185-192,  208-211. 
22"  See  page  41  supra. 
"^^Ibid.,  p.  143. 


90  FOREIGNERS  IN  TURKEY 

the  handing  over  of  such  persons  to  the  consular 
authorities,  claim  in  principle  the  right  of  detention 
during  trial,  though  in  practice  this  right  is  often 
waived  by  certain  of  these  states. 

In  criminal  cases,  the  Powers  with  the  sole  ex- 
ception of  Austria-Hungary  have  never  expressly 
renounced  the  claim  to  the  right  of  foreigners  con- 
victed and  sentenced  in  Ottoman  courts  to  serve  their 
sentences  in  consular  prisons.  Gemiany,  Holland, 
Russia,  and  naturally  the  United  States,  have  always 
maintained  this  right.  England,  Spain,  France,  Italy, 
Greece,  Persia,  and  Sweden,  allow  their  nationals,  with 
occasional  exceptions  as  in  the  case  of  imprisonment 
for  debt,  to  be  imprisoned  in  Turkish  jails.^^ 

D.    INVIOLABILITY  OF  DOMICILE  ^^ 

Article  70  of  the  French  Capitulations  of  1740  pro- 
claimed, and  the  Protocol  of  1867  confirmed  the 
inviolability  of  the  domicile  of  foreigners.  In  the 
process  of  time,  however,  the  Ottoman  Government 
has  sought  naturally  to  place  limitations  on  this  im- 
munity especially  as  regarding  hotels  and  printing 
establishments.  The  Powers  have  as  strenuously 
maintained  their  extreme  pretensions  in  this  respect. 

Without  attempting  to  go  into  a  discussion  of  the 

2*  Young,  I,  pp.  253-256. 

25  Mandelstam,  pp.  176-185;  Du  Rausas,  pp.  129-133.  The 
principle  on  which  the  inviolability  of  the  domicile  of  foreign- 
ers is  based,  as  expressed  by  Du  Rausas,  is  "The  Ottoman  au- 
thorities have  no  jurisdiction  over  the  domicile  because  they 
have  no  jurisdiction  over  the  person  of  a  foreigner."  See  also 
page  45  mpra. 


JURIDICAL  RIGHTS  91 

merits  of  various  controversies  over  this  matter,  we 
may  note  briefly  the  practice  generally  observed  in 
reference  to  the  visit  and  search  of  the  houses,  shops, 
etc.,  of  foreigners. 

(i)  "The  domicile  of  a  foreigner  may  not  be  visit- 
ed by  the  local  authorities  without  consular  assistance, 
except  in  the  instances  noted  in  the  Protocol  of 
i867."26 

(2)  The  Powers  have  insisted  that  "consular  as- 
sistance is  equally  necessary  in  those  instances  where 
the  local  authorities  proceed  to  investigate  and  search 
printing  establishments,  bookstores,  liquor  shops, 
places  of  public  amusement,  and  all  other  similar  es- 
tablishments, as  also  hotels,  apartments,  or  hostelries, 
kept  by  foreigners. "^''^ 

(3)  "The  inspection  of  foreign  vessels  is  abso- 
lutely forbidden  to  local  authorities.  Foreign  subjects 
who  have  committed  an  offense  or  crime  on  shore  are 
not  handed  over  to  the  authorities;  but  Ottoman  sub- 
jects may  be  surrendered  upon  the  presentation  of  a 
proper  order  of  arrest. "^^ 

(4)  The  local  authorities,  in  some  instances,^^  have 

2"  See  also  supra  pages  45.  The  quotations  here  cited  are 
from  Mandelstam    (p.   184). 

27  While  the  Powers  have  resisted  in  principle  the  claims  of 
the  Turkish  police  to  exercise  a  close  surveillance  over  public 
resorts,  they  have  occasionally  acquiesced  in  the  entrance  and 
search  of  foreign  hotels,  etc.,  by  the  competent  local  authorities. 

28  See  also  footnote  26  to  chapter  II. 

29  It  would  be  unreasonable  to  deny  the  right  of  the  Turkish 
authorities  to  enter  the  house  of  a  foreigner  in  case  of  fire, 
murder,  or  any  serious  disturbance  amounting  to  a  breach  of  the 
peace. 


92  FOREIGNERS  IN  TURKEY 

the  right  to  enter  the  domicile  of  a  foreigner  accused 
of  a  crime  or  offense,  in  order  to  make  the  necessary 
investigation;  but  this  does  not  confer  the  right  to 
arrest  or  imprison.  The  Porte  has  decHned  to  admit 
that  the  Turkish  authorities  have  no  such  right,  and 
consequently  difficulties  in  this  connection  are  con- 
stantly arising. 

E.    SPECIAL  IMMUNITIES 

I.  Consular  Immunities'^ 

In  view  of  the  extraordinary  powers  of  consular 
officials  in  Turkey,  usage  and  the  Capitulations  have 
accorded  to  them  and  their  families,  as  well  as  to  their 
dependents,  the  same  privileges  and  immunities  usually 
granted  to  diplomats  and  their  suites.  That  inviola- 
bility of  domicile  which  is  the  right  of  all  foreigners 
is  doubly  the  right  of  all  consular  representatives. 
If,  however,  a  consul  owns  land  or  engages  in  business, 
he  may  not  claim  any  greater  privileges  than  enjoyed 
by  other  foreigners. 

In  common  with  all  foreigners,  consuls  are  exempt 
from  personal  taxes. 

The  regulations^^  concerning  consular  rights  and 
privileges  promulgated  with  the  consent  of  the  Powers 
July  27,  1869,  exempt  the  personal  as  well  as  the 
official  effects  of  consular  officials  from  customs  duties. 
These  regulations  also  conceded  to  consular  officials 
engaged  in  business  certain  customs  exemptions  vary- 
ing in  extent  with  the  rank  of  the  official. ^^ 

80  Ehi  Rausas,  pp.  467-480;  Van  Dyck's  Report,  Appendix  VII. 

31  Van  Dyck's   Report,  Appendix  VIII. 

32  Du  Rausas,  p.  479- 


JURIDICAL  RIGHTS  93 

2.    Proteges  ^^ 

An  anomalous  condition  of  affairs  has  arisen 
since  the  earliest  establishment  of  foreign  communities 
in  Turkey  in  regard  to  the  proteges,  native  as  well  as 
foreign,  withdrawn  from  Ottoman  jurisdiction  and 
placed  under  the  protection  of  the  various  Powers. 
These  special  immunities  have  accrued  to  the  depend- 
ents of  foreigners  mainly  in  order  to  guarantee  effec- 
tively the  free  enjoyment  by  foreigners  of  their 
immunities  in  respect  to  persons,  residence  and  business. 

Various  Powers  for  political  purposes  have  sought 
to  extend  their  protection,  either  in  a  general  way 
over  certain  sects,  as  France  for  example  over  the 
Syrian  Catholics,  or  in  a  more  specific  manner,  over 
different  monastic  and  other  religious  communities. 

So  many  abuses  arose  in  connection  with  the  pro- 
tection accorded  to  Ottoman  subjects  that  the  Porte 
in  1863  with  the  consent  of  the  Powers  promulgated 
full  regulations  defining  clearly  the  status  of  all 
proteges.  ^^ 

The  various  classes  of  proteges  together  with  their 
respective  privileges  are  as  follows : 

(a)  Consular  Proteges.  These  include  all  native 
consular  officials  such  as  vice-consuls,  consular  agents, 
dragomans,  clerks,  and  guards  (Cavass).  They  are 
under  the  protection  of  the  country  they  serve,  and 
while  performing  their  official  functions  are  entitled 
for  general  purposes  to  the  same  privileges  as  na- 
tionals of  that  country. 

^^  Ibid.,  II,  pp.  1-79. 

3*  Van  Dyck's  Report,  Appendix  VI. 


94  FOREIGNERS  IN  TURKEY 

(b)  Foreign  Proteges.  Many  foreigners,  the  Swiss, 
for  example,  are  without  diplomatic  or  consular  rep- 
resentation in  Turkey,  and  are  entitled  to  elect  the 
protection  of  certain  Powers  which  practically  all  of 
the  privileges  and  rights  of  nationals  of  the  country 
empowered  to  grant  protection, 

(c)  Religious  Communities.^^  Certain  monasteries 
and  other  religious  communities,  some  of  which  were 
formerly  under  the  protection  of  the  Papal  States,  and 
others  which  France,  Russia,  Austria-Hungary,  and 
other  Powers  have  asserted  the  right  to  protect,  are 
regarded  as  of  the  nationality  of  the  protecting  nation. 

The  head  of  these  religious  establishments  and 
communities  together  with  their  superior  officials 
including  the  dragomans  are  entitled  to  immuni- 
ties closely  resembling  those  granted  to  consular 
establishments. 

A  curious  feature  of  this  system  is  that  if  an 
individual  in  such  a  community  commits  a  misde- 
meanor in  the  exercise  of  his  religious  duties,  he 
receives  the  consular  protection  of  the  nation  claiming 
jurisdiction  over  the  community.  If,  however,  he 
should  commit  an  offense  as  an  individual  while  not 
engaged  in  his  religious  functions,  he  would  properly 
be  entitled  to  the  protection  of  the  consulate  of  his 
own  nationality  whatever  that  might  be. 

It  is  also  of  interest  to  note  that  these  religious 
communities  through  the  generosity  of  the  Turkish 
Government   have   been   granted   certain    exemptions 

■    35  Du  Rausas,  II,  pp.  80-175. 


JURIDICAL  RIGHTS  95 

from  customs  duties.  These  privileges  in  turn  have 
been  claimed  by  all  other  religious  communities  in- 
cluding the  American  Protestant  Missionary  establish- 
ments throughout  Turkey.^® 

(d)  Permanent  and  Other  Proteges.  Prior  to  the 
promulgation  of  the  regulations  of  1863  restricting 
the  rights  of  proteges,  many  Ottoman  subjects  had 
acquired  the  status  of  proteges,  and  wgtq  allov^ed 
by  the  Porte  to  maintain  this  exceptional  status  as  an 
hereditary  right.^^ 

While  employees  of  foreign  commercial  houses  and 
other  establishments  have  no  definite  right  to  be  treated 
as  foreign  proteges,  they  enjoy  as  a  matter  of  fact  a 
very  large  measure  of  immunity  from  Turkish  juris- 
diction. The  euphemistic  "unofficial  good  offices"  of 
the  foreign  employer's  government  are  most  effect- 
ively brought  into  play  in  their  behalf  at  times;  and 
the  Turkish  authorities  are  ever  reluctant  to  invite 
diplomatic  intermeddling  by  reason  of  any  alleged 
interference,  either  direct  or  indirect,  with  the  personal 
or  business  interests  of  any  foreigner.  It  is  therefore 
more  prudent,  even  under  severe  provocation,  to  leave 
the  native  employees  of  foreign  establishments  severely 
alone. 

J.    Inviolability  of  Correspondence^^ 
The  freedom  of  foreigners  to  engage  in  trade  and 
maintain  establishments  subject  to  the  jurisdiction  of 

3*  Van  Dyck's  Report,  Appendix  XIV. 
37  Ehi  Rausas,  II,  pp.  64-74. 

'^^  Ibid.,  I,  note   i   on  page  417.     See  also  Journal  de  Droit 
International  Prive,  1901,  p.  617. 


96  FOREIGNERS  IN  TURKEY 

their  own  governments  carried  with  it  the  freedom  of 
communication  and  correspondence.  The  Turks  gave 
tliemselves  no  concern  until  recently  as  to  how  for- 
eigners carried  on  their  correspondence.  The  result 
has  been  the  development  of  a  complete  postal  service 
for  the  benefit  of  foreigners,  and  of  those  natives  as 
well  who  choose  to  use  it,  entire  withdrawn  from  the 
supervision  and  control  of  the  Turkish  Government. 
The  six  great  Powers  all  maintain  their  own  post- 
offices  in  various  parts  of  Turkey,  and  carry  on  a  large 
proportion  of  the  postal  operations  which  naturally 
should  lie  within  the  competency  and  province  of  the 
Ottoman  postal  service. 

A  privilege  of  this  character  which  does  not  rest 
on  any  specific  grant  of  the  Capitulations,  and  which 
is  most  offensive  to  the  amour  propre  of  the  Turks, 
must  inevitably  be  relinquished  as  soon  as  it  can  be 
demonstrated  that  the  Turkish  post-offices  are  efficient 
and  reliable. 

SUMMARY 

We  have  traced  in  rough  outline  the  origin  and 
evolution  of  the  regime  of  the  Capitulations.  We  have 
noted  the  historical  bases  of  the  juridical  rights  of 
foreigners  in  Turkey,  and  have  endeavored  to  deter- 
mine the  exact  nature  of  these  rights.  We  have  ob- 
served certain  features  of  this  regime  which  would 
seem  to  require  considerable  modification.  We  are 
conscious  that  so  abnormal  a  state  of  affairs  cannot 
endure  indefinitely.^^    As  to  just  how  it  will  be  possible 

89  The  official  attitude  of  the  Turkish  Government  is  reflected 


JURIDICAL  RIGHTS  97 

to  reconcile  the  point  of  view  of  the  Powers  who  are 
naturally  bound  to  protect  the  interest  of  their  own 
nationals,  with  the  point  of  view  of  the  Imperial 
Ottoman  Government  whose  jurisdiction  as  territorial 
sovereign  has  suffered  such  serious  and  humiliating 
limitations,  is  difficult  to  conjecture.  And  yet  it  would 
seem  necessary  before  leaving  the  subject  to 
seek,  if  possible,  some  reasonable  solution  of  the 
problem, — some  rational,  working  hypothesis  on 
which  to  base  future  adjustments  between  Turkey  and 
the  Powers.  This  task  will  be  the  object  of  the 
following  chapter. 

in  the  views  expressed  by  Count  Ostorog,  at  that  time  legal 
advisor  of  the  Ministry  of  Justice,  in  an  interview  published 
in  the  Stamboul  of  Constantinople  under  date  of  September 
14,  1910.  (Quoted  also  by  Mandelstam,  page  vii.)  "Le  gouv- 
ernment  ottoman  .  .  .  ne  pense  pas  exiger  la  suppression  absolue 
et  immediate  des  Capitulations,  estimant  que  ce  serait  premature. 
Pour  le  prouver  il  suffit  de  rappeler  les  declarations  faites  par 
le  Ministere  de  la  Justice,  Nedjmeddine  Bey,  a  un  redacteur  du 
Tanine  au  cours  d'une  interview  sur  la  question.  .  .  .  D'apres  les 
aveux  meme  des  legistes  les  plus  impartiaux  et  les  plus  eminents, 
il  est  patent  que  I'application  etendue  des  Capitulations  a  donne 
lieu  a  des  hesitations,  a  d'intiles  differends  et  quelquefois  aussi 
a  des  faits  absoluement  contraires  au  droit  et  a  I'equite.  ...  II 
faut  reviser  les  dispositions  des  Capitulations ;  supprimer  les 
causes  de  conflit  ainsi  que  tout  ce  qui  est  de  nature  a  blesser 
I'amour-propere  national  et  a  donner  lieu  a  un  refroidissement 
dans  les  relations  entre  les  ottomans  et  les  etrangers;  enfin 
trouver  un  modus  vivendi  provisoire  base  sue  I'amitie,  la  sin- 
cerite,  le  droit  et  la  justice.  Voila  ce  que  demande  le  gouvern- 
ment  imperial.  Quel  est  le  gouvernement,  I'homme  d'Etat  qui 
puisse  taxer  cette  pretention  d'exageration  et  d'inopportunite," 


IMMUNITIES,  OF   JURISDICTION  AND 
INTERNATIONAL   LAW 


\ 


CHAPTER  V 

Immunities  of  Jurisdiction  and  International 

Law 

The  rights  of  aHens  would  logically  appear  to  be 
the  most  important  concern  of  international  law.  It 
would  seem  that  there  could  be  no  law  of  nations 
which  did  not  arise  from  the  relations  of  individuals 
in  international  intercourse. 

Nations  cannot  act  as  impersonal  entities  with  ab- 
solute consistency.  In  their  relations  with  each  other 
they  deal  as  men  with  men.  If  these  relations  are 
disturbed,  it  is  through  the  action  of  men,  and  very 
frequently  the  cause  of  international  differences  is  to 
be  found  in  the  grievances  of  individuals.  This  truth 
is  illustrated  in  many  different  ways.  For  example, 
the  rights  of  citizens  of  a  neutral  state  who  may  be 
engaged  in  the  sale,  shipment,  and  transportation  of 
goods  of  the  nature  of  contraband  of  war  are  to  be 
determined  by  the  rules  of  international  law.  Article 
4  of  the  Hague  Convention  for  the  Establishment  of 
an  International  Prize  Court  permits  an  individual  to 
appear  before  the  Court  in  certain  instances.^ 

The  extradition  of  foreigners  is  a  matter  which 
concerns  the  individual  quite  as  vitally  as  the  state, 
and  is  properly  regulated  by  recognized  rules  of  inter- 
national law. 

1  A.  Pearce  Higgins,  The  Hague  Peace  Conferences,  p.  409. 

lOI 


I02  FOREIGNERS  IN  TURKEY 

The  exceptional  status  of  merchant  vessels  and 
their  crews  in  foreign  ports  is  also  expressly  set  forth 
in  all  treatises  on  the  law  of  nations. 

Many  of  the  most  serious  diplomatic  incidents, 
leading  to  warlike  aggression  in  some  instances,  have 
arisen  over  the  alleged  violation  of  the  rights  of  aliens. 
Witness  the  acts  of  reprisal  on  Greece  by  England  in 
1850  to  secure  reparation  in  the  case  of  Don  Pacifico,  - 
as  well  as  the  blockade  of  Venezuela  in  1902  by  Eng- 
land, Gemiany,  and  Italy,  to  obtain  payment  of  claims 
held  by  their  nationals.^ 

It  not  infrequently  happens  that  a  nation  reserves 
to  itself  the  right  to  protest  vigorously,  and  even  in- 
tervene by  force,  whenever  it  is  convinced  that  its 
nationals  are  not  protected  in  their  rights  by  the  courts 
or  by  the  responsible  officials  of  another  country.  Italy 
in  1 89 1  very  properly  made  the  failure  of  the  authori- 
ties of  New  Orleans  to  protect  Italian  subjects  from 
mob  violence  the  basis  for  drastic  diplomatic  repre- 
sentations ;  and  the  United  States  as  properly  responded 
by  the  payment  of  an  indemnity.^ 

All  such  matters  are  recognized  as  being  within  the 
province  of  diplomatic  negotiations,  and  deserving 
the  solicitous  consideration  of  nations.^  And  yet, 
when   the   international   law   publicists   approach   this 

2  Scott's  Cases  on  International  Law,  p.  461. 

3  Moore's  Digest,  VI,  p.  586. 
*  Scott,  op  cit.,  pp.  328-329. 

''  Despagnet  in  Droit  International  Prive  (page  17)  goes 
so  far  as  to  affirm  that,  in  matters  of  conflict  respecting  penal 
laws,  recourse  should  be  had  rather  to  international  public  law 
than  to  international  private  law. 


IMMUNITIES  OF  JURISDICTION  103 

immense  field  of  the  rights  of  individuals  within  for- 
eign jurisdictions,  they  seem  to  attempt  to  leave  it  one 
side  by  affirming  that  international  law  has  only  to 
do  with  the  relations  of  states.^  The  rights  of  indi- 
viduals, they  say,  are  to  be  treated  properly  as  a 
separate  branch  of  law  denoted  paradoxically  as  Pri- 
vate International  Law,  International  Private  Law,  or 
preferably,  as  Story  tried  to  solve  the  difficulty. 
Conflict  of  Lazvs. 

It  has  been  said  that  there  is  a  natural  tendency  in 
the  human  mind  to  define  a  thing  in  order  to  avoid  the 
necessity  of  understanding  it.  It  would  be  unjust 
perhaps  to  apply  this  stricture  to  those  publicists  who 
hold  that  the  question  of  the  general  powers  and  juris- 
diction of  nations  over  the  foreigners  within  their 
borders  is  not  properly  the  concern  of  international 
law,  but  that  it  "is  merely  a  subdivision  of  national 
law",  and  "derives  its  force  from  the  sovereignty  of 
the  states  administering  it.""^  It  still  remains  true, 
however,  that  if  one  so  defines  this  subject  he  is  spared 
the  necessity  of  giving  it  the  earnest  consideration  it 
would  seem  to  deserve. 

The  English  and  American  writers  on  this  subject,^ 

''Hall,  International  Law,  p.  51;  Oppenheim,  International 
Laiv„  I,  p.  18  (ed.  1905)  ;  Bonfils,  Droit  International,  p.  2. 

■^  Hall,  pp.  51-52. 

*  Story,  Conflict  of  Laws,  Chapter  II.  (3d.  ed.)  '"The  first 
and  most  general  maxim  or  proposition  is  that  .  .  .  every  nation 
possesses  an  exclusive  sovereignty  and  jurisdiction  within  its 
own  territory"  (p.  28).  See  also  Dicey,  Conflict  of  Laws, 
pp.  12-15,  38  (ed.  1896)  ;  Westlake,  International  Private  Law, 
pp.  4,  20   (ed.    1880)  ;   Phillimore,   International  Law,   vol.   IV. 


I04  FOREIGNERS  IN  TURKEY 

notably  Dicey  and  Story  (Phillimore  shows  a  distinct 
tendency  in  a  more  liberal  direction),  weighted  down 
by  the  feudal  traditions  of  the  Common  Law  as  a  law 
strictly  territorial  in  character  and  scoj^e,  have  jeal- 
ously endeavored  to  maintain  that  the  power  of  the 
territorial  sovereign  over  all  persons  within  his  juris- 
diction is  absolute.  They  claim  that  his  courts  are 
bound  to  recognize  no  other  laws  as  having  extra- 
territorial force  in  his  territory  except  such  as  they 
may  be  pleased  to  recognize  on  the  grounds  of  "inter- 
national comity  and  mutual  utility.'"'^ 

The  continental  writers  on  international  law,  on  the 
other  hand,  protest  that  no  right  can  rest  on  comitas 
gentium:  that  a  right  demands  recognition  because  of 
its  own  intrinsic  merits.^"  These  writers,  who  are 
under  the  sway  of  Roman  Law,  have  almost  unani- 
mously maintained  that  the  territorial  sovereign  by  no 
means  has  absolute  power  and  jurisdiction  over  the  for- 
eigner within  his  territory.  They  maintain  that  for- 
eigners  should   have   the  benefit   of   their   own   laws 

chapter  on  comity  (ed.  1879)  ;  Holland,  Jurisprudence,  op.  cit., 
chap.  XVIII. 

^  "The  true  foundation  on  which  the  administration  of  inter- 
national law  must  rest,  is,  that  the  rules  which  are  to  govern 
are  those  which  arise  from  mutual  interest  and  utility."  Story, 
p.  45. 

^°  Ce  n  'est  done  pas  en  vertu  d'une  concession  gracieuse 
(comitas  gentium)  mais  bien  en  obeissant  a  une  regie  de  droit, 
c'est-a-dire  de  raison  et  justice,  tiree  de  la  nature  meme  des 
relations  internationales,  que  chaque  pays  accepte,  dans  certains 
cas,  sur  son  territoire,  I'application  de  la  loi  etrangere.  Des- 
pagnet,  p.  26. 


IMMUNITIES   OF  JURISDICTION  105 

whenever  such  laws  are  in  no  way  opposed  to  the 
pubHc  order  and  law  of  the  sovereign  state. 

In  other  words,  the  continental  authorities  in  in- 
ternational law  in  opposition  to  the  Anglo-American 
authorities  most  emphatically  deny  that  the  rights  of 
aliens  are  to  be  determined  solely  by  the  varying  legis- 
lation of  each  sovereign  nation.  They  insist  with 
convincing  logic  that  these  rights  are  essentially  inter- 
national rights  to  be  determined  only  through  the 
joint  agreement  of  nations.  Nor  is  this  mere  abstract 
reasoning  or  a  verbal  contention.  The  chief  nations 
of  Europe  have  already  embodied  in  formal  inter- 
national compacts  those  principles  of  law  and  rules 
of  procedure  which  should  be  observed  in  the  treat- 
ment of  aliens  respecting  marriage,  divorce,  guardian- 
ship, inheritance,  and  civil  matters.  ^^ 

The  problem  concerning  the  abstract  rights  of 
foreigners  is  presented  concretely  and  most  uniquely 
in  the  case  of  Turkey.  The  solution  of  this  problem 
should  be  in  accordance  with  sound  international 
principles  rather  than  as  a  modus  vivendi  in  frank 
derogation  of  any  hitherto  accepted  principles  of  the 
law  of  nations.  It  should  no  longer  be  treated  under 
the  absurd  and  unsatisfactory  fiction  of  exterritorial- 
ity as  an  exception  to  the  general  rules  of  interna- 
tional law.  A  sound  working  hypothesis  should 
therefore  be  found  to  solve  this  problem  in  order  to 
afford  a  basis  for  future  adjustments  between  the 
Powers  and  Turkey. 

^^  See  Actes  dc  la  Troisieme  Conference  de  la  Haye  sivr  le 
Droit  International  Privc,  1901. 


lo6  FOREIGNERS  IN  TURKEY 

In  view  of  the  fact  that  the  continental  writers  on 
international  law  are  practically  united  in  treating  the 
rights  of  aliens  as  properly  the  first  concern  of  the 
law  governing  the  intercourse  of  nations,  their  views, 
in  so  far  as  they  apply  to  the  subject  immediately  at 
hand,  cannot  fail  to  be  of  especial  interest. 

Professor  Politis  of  the  University  of  Paris  states  :^^ 

There  is  an  opposition  and  contradiction,  it  seems,  be- 
tween the  terms  "international"  and  "private."  If  our  law 
is  international,  it  could  not  be  private,  because  once  a 
relation  between  states  is  established,  recourse  is  had  to 
a  public  law.  If  then,  being  international,  it  is  public, 
it  blends  with  the  law  of  nations  of  which  it  appears  as 
a  special  branch.  .  .  .  Now,  in  every  matter  of  private 
international  law,  one  is  in  the  presence  of  a  conflict 
of  two  sovereignties.  In  a  conflict  of  laws,  the  ques- 
tion is  to  know  which  is  the  competent  law ;  and, 
as  the  law  itself  has  authority  only  because  it  is 
the  expression  of  the  will  of  the  legi'slator,  this 
amounts  to  demanding  who  is  that  legislator,  that  is 
to  say,  the  sovereign  who  has  the  right  to  see  that  his 
orders  are  obeyed  so  far  as  they  have  relation  to  the 
subject  matter.  This,  then,  is  a  conflict  between  sover- 
eignties, exactly  as  in  the  law  of  nations.  Hence  they 
are  the  same  principles  which  should  govern  its  solution. 

In  a  memorandum  presented  by  the  Roumanian 
delegate  to  the  Third  Conference  of  the  Hague  for 
the  Codification  of  International  Private  Law,  occur 
the  following  observations  :^^ 

The  principles  of  international  private  law  to-day  are 
enjoined  on  all  states  by  virtue  of  a  rule  consecrated  by 
the  law  of  nations.  According  to  this  rule,  states  owing 
to  each  other  a  mutual  respect  of  their  sovereignty,  are 

^^  Journal  de  Droit  International,  1908,  p.  409. 

^^  Actes  de  la  Conference  de  la  Haye,  etc.,  1901,  p.  160. 


IMMUNITIES   OF  JURISDICTION  107 

obliged  to  reciprocally  respect  the  rules  of  private  law  by 
means  of  which,  each  of  them  protects  its  nationals,  its 
persons,  and  its  interests.  Respect  for  foreign  law,  then, 
is  not  founded  on  a  grant,  but  truly  on  a  rigorous  appli- 
cation of  the  principles  of  international  law. 

The  following  excerpts  from  various  international 
law  publicists  will  serve  to  support  these  main  points, 
and  also  emphasize  other  important  aspects  of  this 
question. 

Pillet: 

From  the  moment  states  gave  themselves  over  to  inter- 
national commerce  and  reciprocally  authorized  their  sub- 
jects to  devote  themselves  to  it,  they  tacitly  consented  to 
the  mutual  penetration  of  their  sovereignties}^ 

Each  sovereign  should  tolerate  on  its  territory  the  ap- 
plication of  foreign  laws  to  the  extent  that  said  applica- 
tion serves  the  common  advantage  of  nations. ^'^ 

The  first  question  which  international  law  should  solve 
is  that  of  the  juridical  status  of  foreigners. ^^ 

It  is  therefore  certain  that  the  state  has  not  the  same 
freedom  of  action  towards  the  foreigner  that  it  possesses 
towards  a  national. ^'^ 

To  deprive  a  foreigner  arbitrarily  of  the  benefit  of  his 
personal  status,  is  to  refuse  to  recognize  the  civil  effects 
of  his  standing  as  a  foreigner ;  it  is  to  strike  a  blow  at 
the  right  of  legislation  which  the  foreign  state  preserves 
over  its  subjects  abroad.^^ 

Rights   duly   acquired    should   be   respected   in   inter- 

i*  Pillet,    Principes   de   Droit   International    Prive,   p.   73    (ed. 

1903). 

i''/&irf.,  p.  53. 
18  Ibid..,  p.  168. 
^Ubid.,  p.   196. 
'  8  Ibid.,  p.  202. 


I08  FOREIGNERS  IN  TURKEY 

national  society.  This  idea  of  respect  among  the  nations 
comprised  in  the  international  community,  implies  to- 
gether with  the  obligation  to  do  nothing  that  may  weaken 
or  destroy  a  right  duly  acquired,  the  duty  to  guarantee 
on  their  territory  every  consequence  (of  these  rights) 
compatible  with  the  exigencies  of  public  order.^'' 

Despagnet : 

It  is  therefore  not  by  virtue  of  a  gracious  concession 
(comitas  gentium)  but  indeed  in  obeying  a  rule  of  law, 
that  is  to  say,  of  reason  and  justice,  deduced  from  the 
nature  of  international  relations,  that  each  country  ac- 
cepts, in  certain  cases,  the  application  of  foreign  law  on 
its  territory.-" 

Fiore : 

.  .  .  One  may  henceforth  consider  as  a  rule  of  law 
common  to  all  the  states  of  Europe,  that  laws  relative  to 

1'  Ibid,  534.  The  following  observations  of  the  same  trend 
by  Pillet  also  deserve  quotation.  La  souverainete  a  franchi  les 
liinites  territoriales  de  I'Etat  du  jour  ou  une  personne  a  ete 
admise  a  entretenir  des  relations  hors  de  sa  patrie :  la  reconais- 
sance  de  I'effet  extraterritorial  d'une  souverainete  etrangere 
(page  58).  La  loi  Internationale  doit  s'efforcer  de  porter  au 
plus  haut  degre  I'autorite  des  lois  nationales  dans  le  domaine 
des  relations  Internationales  (page  150).  Dans  les  relations 
internationales  la  nationalite  joue  le  role  du  premier  element 
d'ordre  sur  lequel  repose  la  possibilite  d'une  communaute  juri- 
dique,  et  cela  meme  dans  les  pays  qui  n'accordent  a  la  loi 
nationale  aucune  competence  dans  la  solution  des  conflits.  La 
nationalite  est  I'element  qui  diflFerencie  le  citoyen  de  I'etranger, 
c'est  elle  qui  donne  le  plus  souvent  a  une  question  de  droit  sa 
forme  Internationale   (page   176). 

*  Despagnet,  op.  cit.,  p.  26.  He  qualifies  this  statement  later 
on  as  follows :  Un  premier  point  hors  de  doute  c'est  que 
I'etranger  ne  pourra  jamais  invoqucr  les  dispositions  de  sa  loi 
nationale  pour  faire  regler  son  etat  et  capacite,  quand  ces  dis- 
positions seront  contraires  aux  principes  d'ordre  public  admis 
dans  le  pays  ou  il  se  trouve  (page  470- 


IMMUNITIES   OF  JURISDICTION  109 

status  and  juridical  capacity  follow  the  citizen  every- 
where.^^ 

Laurent : 

Burgundus  said  that  "land  attracted  man  to  itself,"  or, 
as  M.  Mignet  stated  it,  "man  was  in  a  way  possessed  by 
the  land :  while  according  to  our  modern  ideas,  land  is  the 
accessory  of  the  individual."  So  it  was  in  all  things  the 
law  of  the  land  which  should  preponderate  under  the 
feudal  regime,  and  today  it  is  the  individual  and  his 
rights  that  control.^^ 

The  Anglo-American  jurists  start  with  the  principle 
that  each  nation  has  an  exclusive  sovereignty  on  its  own 
territory.  .  .  .  This  is  the  principle  of  the  Middle  Ages. 
.  .  .  Sovereignty  is  no  longer,  as  it  was  in  the  Middle 
Ages,  the  power,  and  if  necessary,  the  caprice  of  the  pro- 
prietor who  might  use  and  abuse  his  possessions.  Its 
mission  is  more  elevated.-^ 

If  sovereignty  is  territorial,  said  Savigny,  and  if  sov- 
ereign power  is  absolute,  the  foreigner  will  be  at  the 
mercy  of  a  sovereign  who  may  do  all  that  he  wills ;  that 
is  to  say,  he  is  without  law.  This  is  what  the  common 
law,  so  dear  to  Anglo-Americans,  teaches  us.-* 

Comitas  has  nothing  in  common  with  law  (droit)  ;  it 
is  on  the  contrary  the  negation  of  law.     As  concerns 

21  Fiore,  Droit  Internationale  Prive,  p.  81  (2d.  ed.).  Fiore 
also  remarks  that :  le  souverain  territorial  ne  peut  avoir  aucun 
interet  a  soustraire  I'etranger  a  I'empire  de  sa  loi  naturelle  et  a 
lui  imposer  des  lois  faites  pour  ses  propres  citoyens.  Son  droit 
unique  est  d'empecher  que  I'etranger  n'exerce  ses  droits  sur  le 
territoire  qui  lui  est  soumis  en  vertu  de  la  loi  de  son  pays 
lorsque  I'exercice  et  la  reconnaissance  de  ces  droits  est  contraire 
aux  principes  ■d-'ordre  public  et  de  droit  public  en  vigeur  sur  le 
territoire.  .  .  .  le  systeme  qui  donne  la  preference  a  la  loi  nation- 
ale  est  en  principe  le  plus  con  forme  aux  principes  rationnels 
(page  83). 

22  Laurent,  Droit  Civil  International,  p.  271   (ed.  1880). 

23  Ibid.,  p.  553. 
^*Ihid.,  p.  561. 


no  FOREIGNERS  IN  TURKEY 

territorial  sovereignty,  it  is  dominated  by  a  law  which 
is  superior  to  it,  the  society  of  mankind  which  should  be 
ruled  by  one  and  the  same  law.-^ 

Heffter: 

The  state  which  would  deny  the  authority  of  a  civil 
law  other  than  that  it  has  established,  would  at  the  same 
time  deny  the  existence  of  other  states  and  the  equality 
of  their  rights  with  its  own.-" 

Mancini : 

The  treatment  of  foreigners  cannot  be  dependent  on 
the  comitas  and  the  sovereign,  arbitrary  will  of  each 
state.  Science  can  only  consider  this  treatment  as  a 
strict  obligation  of  international  justice  from  which  a 
nation  may  not  escape  without  breaking  the  bond  which 
unites  the  human  species  in  one  great  community  of  law, 
founded  on  the  community  and  the  sociability  of  human 
nature.-^ 

Holtzendorff : 

What  a  blow  to  the  authority  of  civil  law,  if  the  fact 
of  having  crossed  the  boundary  of  a  territory  should 
cause  the  rights  of  a  citizen  to  depend  on  the  arbitrary 
will  of  a  foreign  functionary !  In  order  to  assure  these 
rights,  especially  in  the  time  of  easy  communication  in 
which  we  live,  solid  guarantees  are  needed  which  should 
safeguard  them  beyond  even  the  area  of  the  control  of 
territorial  laws.  It  is  here  that  private  laiv  finds  its  point 
of  contact  with  the  law  of  nations."^^ 

The  consensus  of  opinions  above  quoted  would  seem 
to  lead  to  the  following  general  conclusions : 

I.  The  rights  of  foreigners  may  not  be  subject  to 
the   unrestrained   judgment   and   action   of   any   one 

23  Ibid. 

28  Heffter,  quoted  by  Despagnet,  page  22. 

2'  Mancini,  quoted  by  Laurent,  p.  637. 

28  Holtzendorff,  quoted  by  Despagnet,  p.  23. 


IMMUNITIES  OF  JURISDICTION  m 

nation.  Sovereignty  does  not  confer  on  the  territorial 
legislature  full  power  over  foreigners.^^  Their  rights 
may  be  determined  only  by  the  deliberate,  united 
agreement  of  all  nations,  in  accordance  with  the  most 
liberal  conceptions  of  the  law  of  nations.  Interna- 
tional, not  national  jurisprudence  must  have  sway. 

II.  Foreigners  carry  with  them  wherever  they  go 
such  rights  as  accompany  their  nationality,  in  so  far 
as  the  recognition  of  such  rights  is  not  repugnant  to 
the  law  and  order  of  the  state  within  whose  jurisdic- 
tion they  may  temporarily  reside. 

III.  These  rights  are  in  general  terms  such  as  re- 
late to  civil  status  and  capacity,  and  include  such 
matters  as  marriage,  separation  or  divorce,  legitima- 
tion, guardianship  of  minors,  idiots  et  al.,  inheritance, 
settlement  of  estates,  bankruptcy,  etc.,  etc.  (In  penal 
matters,  a.=  has  already  been  noted, -''''  nations  reserve 
the  right  to  protect  their  nationals  against  unduly  harsh 
punishments  such  as  imprisonment  for  debt,  or  against 
any  evident  failure  of  foreign  courts  to  accord  full 
justice.) 

IV.  It  is  most  desirable  that  these  rights  should 
be  definitely  determined  by  international  agreements. 
Where  this  is  difficult,  or  impossible  by  reason  of  a 
serious  divergence  in  systems  of  law  and  procedure, 
as  for  example  in  the  case  of  Italy  and  the  United 
States,  or  Russia  and  Japan,    the    general    principles 

28  For  a  forceful  presentation  of  this  point  of  view,  see,  Con- 
sultation pour  les  Societes  d'assurance  sur  la  Vic,  by  Edouard 
Clunet  (Paris,  1912). 

2"'  See  page  102  supra. 


112  FOREIGNERS  IN  TURKEY 

governing  the  rights  of  foreigners  should  formally  be 
recognized  and  respected  to  the  fullest  possible  extent. 
They  should  not  be  made  to  depend  on  international 
comity  but  on  international  law. 

Applying  now  these  general  observations  to  the 
particular  problem  at  hand,  namely,  the  finding  of  a 
working  hypothesis  on  which  to  base  future  adjust- 
ments of  the  Powers  with  the  Porte  in  regard  to  the 
protection  of  foreigners,  with  due  respect  to  the  sov- 
ereign rights  of  Turkey  as  an  independent,  equal  state 
in  the  family  of  nations,  we  are  led  to  the  following 
conclusions : 

I.  According  to  the  basic  principles  of  international 
law,  Turkey  should  have  exclusive  jurisdiction  over 
foreigners,  as  well  as  natives,  in  all  matters  affecting 
public  law  and  order  in  the  Empire.  This  is  essentially 
a  fundamental  right  of  independent  sovereignty. 

Turkish  criminal  and  civil  law  should  therefore  be 
made  to  accord  fully  both  in  form  and  substance  with 
the  law  generally  accepted  in  all  civilized  lands.  The 
introduction  of  judicial  reforms  and  adequate  guar- 
antees for  the  proper  dispensation  of  justice  should 
prove  merely  a  question  of  time.  Once  accomplished, 
there  do  not  appear  to  be  any  insuperable  obstacles  in 
the  way  of  securing  the  consent  of  the  Powers  to  the 
complete  renunciation  of  criminal  jurisdiction  on  the 
part  of  the  consular  courts.  Public  law  and  order 
cannot  tolerate  conflicting  criminal  jurisdictions  within 
the  same  territory. 

Furthermore,  a  necessary  corollary  to  the  recogni- 


IMMUNITIES   OF  JURISDICTION  113 

tion  of  the  independent  jurisdiction  and  integrity  of 
the  Turkish  courts  would  be  the  renunciation  by  the 
Powers  of  the  offensive  supervision  and  control  over 
Ottoman  tribunals  in  cases  involving  foreigners  which 
has  hitherto  been  exercised  by  the  consular  dragoman. 

II.  The  profound  difference  between  the  basic  prin- 
ciples of  Moslem  jurisprudence  and  other  systems  of 
law  is  of  so  irreconcilable  a  character  as  to  render  it 
impossible  for  Turkey  to  enter  into  any  international 
agreement  defining  the  rights  of  foreigners  in  respect 
to  personal  status  and  civil  capacity.^^  No  reciprocal 
arrangement  in  this  regard  would  seem  within  the 
realm  of  possibility. 

Nor  for  the  same  reason  would  it  be  feasible  to 
attempt  to  prescribe  the  general  principles  which  should 
guide  the  courts  in  the  application  of  foreign  laws 
which  in  spirit  and  in  letter  are  so  much  out  of  har- 
mony with  Moslem  legal  precepts.  The  Turks  them- 
selves have  recognized  this  difficulty  by  leaving  to  the 
different  religious  communities  (Mil'let)  exclusive 
jurisdiction  in  matters  affecting  the  personal  status  of 
the  members  of  these  communities. 

III.  The  institution  of  a  special  mixed  court  com- 
posed of  native  and  foreign  judges  similar  to  the 
courts  in  Egypt  with  full  and  final  powers,  as  sug- 
gested by  Mandelstam,^^  is  open  to  serious  objection. 
It  would  be  entirely  offensive  to  the  national  pride  of 
the  Turks  as  a  most  humiliating  form  of  international 
intermeddling  which  would  ultimately  threaten  to  ex- 

3"Bonfils,   sections    1747-1753. 
31  Mandelstam,  pp.  268-270. 


114  FOREIGNERS  IN  TURKEY 

tend  to  all  matters  involving  both  foreigners  and 
natives.  An  international  tribunal  functioning  inde- 
pendently within  a  sovereign  independent  state  would 
constitute  a  constant  menace  to  its  independence  and 
sovereignty. 

IV.  The  way  out  of  the  dilemma  would  seem 
clearly  to  lie  in  a  frank  recognition  of  the  desirability 
of  leaving  to  the  exclusive  jurisdiction  of  the  consular 
courts  all  questions  regarding  foreigners  which  do 
not  in  any  way  affect  the  public  law  and  order  of  the 
Empire. 

The  Ottoman  courts  would  be  relieved  of  the 
embarrassment  of  attempting  to  ascertain  and  apply 
foreign  laws  not  in  harmony  with  Moslem  legal 
precepts.  ^- 

The  perpetuation  and  unobtrusive  functioning  of 
the  consular  courts  within  well  defined  limits  would 
thus  prove  a  blessing  to  the  Turkish  courts,  and  facili- 
tate most  effectively  the  ends  of  justice.  This  would 
require,  of  course,  that  full  faith  and  legal  effect 
should  be  given  to  the  decisions  of  the  consular  courts. 

As  matters  stand  now,  where  no  international  agree- 
ments exist  in  respect  to  the  juridical  rights  of  for- 
eigners, it  seems  unreasonable  and  repugnant  to 
justice  to  leave  to  a  judge,  say  of  France,  the  duty  of 
determining  the  exact  nature  and  effect  of  a  law  affect- 
ing a  Japanese,  when  the  public  law  and  order  of 
France  is  in  no  way  involved. 

32  Sir  Travers  Twiss  in  his  Law  of  Nations  (vol.  I,  p.  469), 
expresses  the  opinion  that  the  suppression  of  the  regime  of  the 
Capitulations  would  be  a  positive  wrong  to  the  Turks. 


IMMUNITIES  OF  JURISDICTION  115 

In  actual  practice,  a  judge  in  such  an  instance  may : 
(i)  call  in  so-called  experts  to  advise  the  court  con- 
cerning the  law  to  be  applied;  (2)  he  may  make  re- 
quest by  means  of  letters  rogatory  direct  to  the 
competent  foreign  judicial  authorities;  (3)  he  may 
even  apply  to  the  consular  representative  of  the  for- 
eigner concerned  in  the  suit.^^ 

In  principle,  there  does  not  seem  to  exist  any  sound 
reason  why  a  court  should  not  only  appeal  to  a  consul 
for  such  information,  but  should  even  request  that 
official  to  decide  the  actual  question  at  issue,  provided, 
of  course,  that  he  were  empowered  by  treaty  to  per- 
form judicial  functions  of  this  character.  In  the  case 
of  Goddard  z'erstis  Luby,  quoted  by  Stowell  in  Con- 
sular Cases  and  Opinions,  where  suit  was  brought  for 
"slanderous  words,"  the  United  States  Court  held 
that  under  the  treaty  then  in  force  with  France,  juris- 
diction belonged  to  the  French  consul  of  that  district.^^ 

A  consul,  as  a  matter  of  fact,  actually  does  perform 
many  acts  of  a  more  or  less  juridical  character  in  the 
drawing  up  of  papers,  the  settlement  of  estates  of  de- 
ceased fellow-countrymen,  etc.  He  has  extended 
powers  of  jurisdiction  on  board  merchant  ves- 
sels flying  the  flag  o'f  his  country.  These  powers 
are  conceded  to  him  under  the  fiction  of  exterri- 
toriality, a  merchant  vessel  being  considered  as  a 
floating  portion  of  the  country  of  the  flag  it  flies. 

32  Fiore,  op.  cit.,  pp.  285-291. 

2*  For  an  excellent  resume  of  the  pdwers  of  Consuls,  see 
Stolwell's  Consular  Cases  and  Opinions,  under  head  of  Compen- 
dium, pp.  739-748.  See  also  Moore's  Digest,  vol.  II,  sec.  205- 
208;  V,  sec.  696-733. 


Il6  FOREIGNERS  IN  TURKEY 

It  has  been  remarked  that  "one  invents  fictions 
when  one  does  not  know  how  to  justify  rules  which 
are  perceived  to  be  necessary."^'  It  would  seem  just 
as  logical  by  analogy  that  if  merchant  vessels  are  not 
to  be  considered  as  having  come  fully  within  local 
jurisdiction  for  all  purposes,  foreigners  sojourning  on 
shore  likewise  should  not  be  considered  as  fully  subject 
to  local  jurisdiction  in  all  that  may  in  no  way  concern 
public  law  and  order. 

It  would  seem  more  in  consonance  with  modern 
conceptions  of  the  respect  due  to  the  rights  of  for- 
eigners in  the  intercourse  of  nations,  as  well  as  more 
in  accord  with  the  ends  of  justice,  to  give  to  consular 
representatives  judicial  powers  wherever  foreign  laws 
are  to  be  interpreted  and  applied  without  injury  to  the 
interests  and  rights  of  the  territorial  sovereign. 

An  arrangement  of  this  nature  might  not  appear 
necessary  or  desirable  where  countries  have  similar 
laws  and  judicial  procedure,  and  particularly  where 
they  have  agreements  such  as  have  already  been  signed 
by  certain  of  the  European  nations  in  respect  to  the 
rights  of  aliens. 

In  the  case  of  countries  having  essentially  different 
laws  and  procedure,  such  as  China  and  Germany,  Eng- 
land and  Italy,  or  the  United  States  and  Turkey, 
the  arrangement  suggested  would  seem  eminently 
desirable. 

An  agreement  of  this  character  wliich  would  nec- 
essarily be  reciprocal  in  effect,  would  offend  the  na 
tional  pride  of  no  one.     In  harmony  with  the  most 
35  Pillet,  Principes,  etc.,  p.  258. 


IMMUNITIES  OF  JURISDICTION  117 

enlightened  concepts  of  international  law  and  inter- 
course, this  solution  would  afford,  in  the  case  of  Tur- 
key, a  reasonable  working  hypothesis  to  justify  the 
perpetuation,  in  a  much  modified  form,  of  an  extra- 
ordinary regime  which  has  been  in  many  respects 
ineffective  and  intolerable. 

The  germ  of  such  an  adjustment  already  exists 
among  the  Chinese  in  the  United  States.  Owing  to 
the  incongruities  of  Chinese  and  American  law,  they 
are  unwilling  to  have  recourse  to  the  American  courts. 
They  therefore  maintain  a  kind  of  unofficial,  judicial 
system  of  their  own  whereby  their  disputes  are  judged 
and  settled  by  their  own  representatives  according  to 
Chinese  laws  and  customs. 

It  would  not  seem  unreasonable  or  Quixotic  to 
express  the  belief  that  such  an  institution  should  be 
replaced  by  consular  tribunals  properly  empowered  by 
treaty  to  exercise  judicial  functions  wherever  the 
public  law  and  order  of  the  territorial  sovereign  is 
in  no  way  affected.  The  decisions  of  such  courts, 
moreover,  should  be  given  the  same  respect  and  have 
the  same  legal  effect  as  in  the  case  of  the  decisions  of 
foreign  courts  which  may  be  entitled  to  recognition 
and  execution  by  the  courts  of  the  territorial  sovereign.' 

The  suggestion  here  presented  may  seem  on  first 
consideration  radical  and  offensive,  even,  to  those  who 
hold  jealously  to  the  exclusive  rights  of  jurisdiction 
by  the  territorial  sovereign.  Under  the  theory,  how- 
ever, that  "what  the  King  permits,  he  commands," 
they  might  he  willing  to  concede  that  the  local  sov- 
ereign could  properly  consent  to  judicial  jurisdiction 
by  consular  courts  within  properly  defined  limits. 


Il8  FOREIGNERS  IN  TURKEY 

From  the  point  of  view  of  international  law,  there 
does  not  seem  to  exist  any  sound  objection  to  this 
proposed  consecration  of  judicial  jurisdiction  by  con- 
sular courts.  On  the  contrary,  such  an  enlightened 
arrangement  between  countries  having  distinct  sys- 
tems of  law  and  procedure  would  seem  better  cal- 
culated to  facilitate  international  intercourse,  and  more 
adequately  protect  the  sacred  rights  of  foreigners  than 
the  present  unsatisfactory  arrangement.  All  that  is 
required  to  effect  this  reform  would  be  the  extension  by 
treaty  agreements  of  ix)wers  already  possessed  in  em- 
bryo by  consular  officials  throughout  the  world. 

In  the  case  of  Turkey,  it  would  mean  simply  the 
peri^etuation  of  the  existing  consular  court  with 
considerably  restricted  powers  of  jurisdiction ;  and  a 
clear  delimitation  of  the  respective  spheres  of  these  trib- 
unals and  Ottoman  courts.  Turkey  could  then  feel 
that  the  presence  of  these  foreign  tribunals  was  no 
longer  in  derogation  of  its  sovereign  rights. 

Recalling  with  pride  that  the  privileges  voluntarily 
and  generously  granted  to  foreigners  and  Christian 
subjects  alike,  were  granted  when  the  Turks  were  at 
the  height  of  their  military  power,  the  descendants  of 
the  race  of  Osman  might  well  claim  with  equal  pride 
that  the  continuation  of  these  greatly  modified  im- 
munities of  jurisdiction  might  properly  be  regarded, 
as  suggested  in  the  introduction,  "as  evidence  of  a 
more  enlightened  and  more  liberal  interpretation  of 
the  law  of  nations  than  has  yet  been  granted  in  Eu- 
rope, the  place  of  its  origin,  though  not  of  its  exclusive 
development  or  application." 


APPENDIX 

REGULATIONS  IN  FORCE  IN  THE  CONSULAR  COURTS  OF  THE 
UNITED   STATES   IN   THE   OTTOMAN   DOMINIONS. 

I. — Ordinary  Civil  Proceedings 

1.  Civil  proceedings  between  American  citizens  must 
commence  by  written  petition  verified  by  oath  before  the 
consul. 

2.  Ordinary  personal  civil  actions  are  of  three  classes, 
viz: 

Contract — comprising  all  cases  of  contract  or  debt. 
Wrong — when  damages  are  claimed  for  a  wrong. 
Replevin — when    possession    of    a    specific    article    is 
claimed. 

3.  In  contract,  the  petition  must  aver  that  payment  or 
a  performance  of  the  conditions  of  the  contract  has  been 
demanded  and  withheld ;  and  in  replevin,  that  the  arti- 
cles to  be  replevied  have  been  demanded. 

4.  The  petitioner  shall  be  required  to  deposit  a  reason- 
able sum  to  defray  the  probable  expenses  of  court  and 
defendant's  costs.  Subsequent  deposits  may  be  required, 
if  found  necessary. 

5.  Upon  deposit  of  the  money,  the  consul  shall  order 
notice  on  the  petition  in  writing,  directing  defendant  to 
appear  before  him  at  a  given  day  and  hour  to  file  his 
written  answer  on  oath. 

6.  Notice  must  be  served  on  each  defendant  at  least 
five  days  before  return  day,  by  delivery  of  an  attested 
copy  of  the  petition  and  order  and  of  any  accompanying 
account  or  paper. 

7.  Personal  service  should  always  be  required  when 
practicable. 

8.  On  proof  of  due  notice,  judgment  by  default  shall 
be  pronounced  against  any  defendant  failing  to  appear 

119 


120  FOREIGNERS  IN  TURKEY 

and  file  his  answer  as  required ;  but  the  default  may  be 
taken  oflf  for  good  cause,  within  one  day  after  (exclu- 
sive of  Sunday). 

9.  But  in  actions  of  wrong  and  all  others  where  the 
damages  are  in  their  nature  unliquidated  and  indefinite, 
so  that  they  cannot  be  calculated  with  precision  from 
the  statements  of  the  petition,  the  amount  of  the  judg- 
ment shall  be  ascertained  by  evidence,  notwithstanding 
the  default. 

ID,  If  defendant  appears  and  answers,  the  consul,  hav- 
ing both  parties  before  him,  shall,  before  proceeding 
farther,  encourage  a  settlement  by  mutual  agreement  or 
by  submission  of  the  case  to  referees  agreed  on  by  the 
parties,  a  majority  of  whom  shall  decide  it. 

11.  Parties  should  at  the  trial  be  confined  as  closely 
as  may  be  to  the  averments  and  denials  of  the  state- 
ment and  answer,  which  shall  not  be  altered  after  filing 
except  by  leave  granted  in  open  court. 

12.  On  application  of  either  party  and  advance  of  the 
fees,  the  consul  shall  compel  the  attendance  of  any  wit- 
ness within  his  jurisdiction,  before  himself,  referees,  or 
commissioners. 

13.  Each  party  is  entitled,  and  may  be  required,  to 
testify. 

14.  Judgment  may  be  given  summarily  against  either 
party  failing  to  obey  any  order  or  decree  of  the  consul. 

ATTACHMENT  AND  ARREST 

15.  For  sufficient  cause  and  on  sufficient  security,  the 
consul,  on  filing  a  petition,  may  grant  a  process  of  at- 
tachment on  any  defendant's  property  to  a  sufficient 
amount,  or  of  arrest  of  the  person  of  any  defendant  not 
a  married  woman,  nor  in  the  service  of  the  United  States 
under  commission  from  the  President,  nor  otherwise 
exempted  by  law. 

16.  Any  defendant  may  at  any  time  have  the  attach- 
ment dissolved  by  depositing  such  sum  or  giving  such 
security  as  the  consul  may  require. 

17.  Perishable  property,  or  such  as  is  liable  to  serious 
depreciation  under  attachment,  may,  on  petition  of  either 


APPENDIX  121 

party,  be  sold  by  the  consul's  order  and  its  proceeds  de- 
posited in  the  consulate. 

i8.  Any  defendant  arrested  or  imprisoned  on  civil 
petition  shall  be  released  on  tender  of  a  sufficient  bond, 
deposit  of  a  sufficient  sum,  or  assignment  of  sufficient 
property. 

19.  Any  person  under  civil  arrest  or  imprisonment 
may  have  his  creditor  cited  before  the  consul  to  hear  a 
disclosure  of  the  prisoner's  affairs  under  oath,  and  to 
question  him  thereon,  and  if  the  consul  shall  be  satisfied 
of  its  truth  and  thoroughness,  and  of  the  honesty  of  the 
debtor's  conduct  toward  the  creditor,,  he  shall  forever 
discharge  him  from  arrest  upon  that  debt,  provided  the 
prisoner  shall  offer  to  transfer  and  secure  to  his  creditor 
the  property  disclosed  or  sufficient  to  pay  the  debt,  at  the 
consul's  valuation. 

20.  The  creditor  must  advance  to  the  jailer  his  fees 
and  payment  for  his  prisoner's  board  until  the  ensuing 
Monday,  and  afterwards  weekly,  or  the  debtor  will  be 
discharged  from  imprisonment  and  future  arrest. 

EXECUTION 

21.  On  the  second  day  after  judgment  (exclusive  of 
Sunday)  execution  may  issue  enforcing  the  same,  with 
interest  at  12  per  cent,  a  year,  against  the  property  and 
person  of  the  debtor,  returnable  in  30  days  and 
renewable. 

22.  Sufficient  property  to  satisfy  the  execution  and  all 
expenses  may  be  seized  and  sold  at  public  auction  by  the 
officer  after  due  notice. 

23.  Property  attached  on  petition  and  not  advertised 
for  sale  within  ten  days  after  final  judgment  shall  be 
returned  to  the  defendant. 

24.  When  final  judgment  is  given  in  favor  of  defend- 
ant, his  person  and  liberty  are  at  once  freed  from  im- 
prisonment or  attachment,  and  all  security  by  him  given 
discharged.  And  the  consul  may,  at  his  discretion,  award 
him  compensation  for  any  damage  necessarily  and  direct- 
ly sustained  by  reason  of  such  attachment,  arrest,  or 
imprisonment. 


122  FOREIGNERS  IN  TURKEY 


EXEMPTION   AND  DISCHARGE 


25.  The  consul  may  exempt  from  attachment,  seizure, 
or  assignment  any  articles  of  personal  property  indis- 
pensable to  the  comfort  of  the  owner  or  his  family,  and 
he  may  at  any  time  release  or  bail  any  debtor,  discharge 
any  security  or  dissolve  the  whole,  or  a  part,  of  any 
attachment,  when  justice  requires. 

OFFSET 

26.  In  actions  of  contract,  defendant  may  offset  peti- 
tioner's claim  by  any  contract  claim,  filing  his  own  claim 
under  oath  with  his  answer.  Petitioner  shall  be  notified 
to  file  his  answer  seasonably  on  oath,  and  the  two  claims 
shall  then  be  tried  together  and  but  one  judgment  given 
for  the  difference,  if  any  provided,  in  favor  of  either 
party ;  otherwise  for  defendants'  costs. 

COST 

27.  Except  as  hereinafter  provided,  the  party  finally 
prevailing  recovers  costs,  to  be  taxed  by  him  and  revised 
by  the  consul. 

TRUSTEE  PROCESS 

28.  In  contract,  the  consul  may  order  defendant's 
property  or  credits  in  a  third  party's  hands  within  the 
jurisdiction  of  the  United  States  to  be  attached  on  the 
petition,  by  serving  him  with  due  notice  as  trustee,  pro- 
vided petitioner  secures  trustee  his  costs  by  adequate 
special  deposit. 

29.  If  adjudged  trustee,  the  third  party  may  retain  his 
costs  from  the  amount  for  which  he  is  adjudged  trustee, 
if  sufficient;  otherwise,  the  balance  of  trustee's  costs  must 
be  paid  out  of  petitioner's  special  deposit,  as  must  the 
whole  of  his  costs  if  not  adjudged  trustee. 

30.  The  amount  for  which  a  trustee  is  charged  must 
be  inserted  in  the  execution  and  demanded  of  him 
by  the  officer  within  ten  days  after  judgment,  or  all  claim 
on  him  ceases.  Process  against  the  property  or  person  of 
trustee  may  issue  ten  days  after  demand. 


APPENDIX  123 

31.  If  petitioner  recovers  judgment  for  less  than  $10, 
or  if  less  than  $10  of  defendant's  property  or  credits  is 
proved  in  the  third  party's  hands — in  either  case  the 
third  party  must  be  discharged,  with  costs  against 
petitioner. 

REPLEVIN 

32.  Before  granting  a  writ  of  replevin,  the  consul  shall 
require  petitioner  to  file  a  sufficient  bond,  with  two  re- 
sponsible sureties,  for  double  the  value  of  the  property 
to  be  replevied,  one  an  American  citizen,  or  petitioner 
may  deposit  the  required  amount. 

II. — Tender,  etc. 

,33.  Before  a  creditor  files  his  petition  in  contract,  his 
debtor  may  make  an  absolute  and  unconditional  offer  of 
the  amount  he  considers  due  by  tendering  the  money  in 
the  sight  of  the  creditor  or  his  legal  representative. 

34.  If  not  accepted,  the  debtor  shall,  at  his  own  risk 
and  paying  the  charges,  deposit  the  money  with  the 
consul,  who  shall  receipt  to  him  and  notify  the  creditor. 

35.  It  shall  be  paid  to  the  creditor  at  any  time  if  de- 
manded, unless  previously  withdrawn  by  the  depositor. 

36.  If  the  depositor  does  not  withdraw  his  deposit,  and 
upon  trial  is  not  adjudged  to  have  owed  petitioner  at  the 
time  of  the  tender  more  than  its  amount,  he  shall  recover 
all  his  costs. 

OFFER  TO  be  DEFAULTED 

37.  At  any  stage  of  a  suit  in  contract  or  wrong,  de- 
fendant may  file  an  offer  to  be  defaulted  for  a  specific 
sum  and  the  costs  up  to  that  time,  and  if  the  petitioner 
chooses  to  proceed  to  trial,  and  does  not  recover  more 
than  the  sum  offered  and  interest,  he  shall  pay  all  defen- 
dant's costs  arising  after  the  offer,  execution  issuing 
for  the  balance  only. 

III. — Reference 

38.  When  parties  agree  to  a  reference,  they  shall  im- 
mediately file  a  rule  and  the  case  be  marked  "Referred" ; 


124 


FOREIGNERS  IN  TURKEY 


a  commission  shall  then  issue  to  the  referees,  with  a  copy 
of  all  papers  filed  in  the  case. 

39.  The  referees  shall  report  their  award  to  the  consul, 
who  shall  accept  the  same  and  give  judgment  and  i'ssue 
execution  thereon,  unless  satisfied  of  fraud,  perjury, 
corruption,  or  gross  error  in  the  proceedings. 

40.  In  cases  involving  more  than  $500,  if  his  accep- 
tance is  withheld,  the  consul  shall  at  once  transmit  the 
whole  case,  with  a  brief  statement  of  his  reasons  and  the 
evidence  therefor,  to  the  minister  resident,  who  shall  give 
judgment  on  the  award  or  grant  a  new  trial  before  the 
consul. 

IV. — Appeal 

41.  Appeals  must  be  claimed  before  three  o'clock  in 
the  afternoon  of  the  day  after  judgment  (excluding  Sun- 
day), but  in  civil  cases  only  upon  sufficient  security. 

42.  Within  five  days  after  judgment,  the  appellant 
must  set  forth  his  reasons  by  petition  filed  with  the  con- 
sul, which  shall  be  transmitted  as  soon  as  may  be  through 
the  consul-general  to  the  minister,  with  a  copy  of  the 
docket  entries  and  of  all  papers  in  the  case. 

43.  The  consul-general  may  allow  any  prisoner  (by  law 
entitled  to  appeal)  sent  to  Constantinople  for  imprison- 
ment on  sentence  of  a  consul,  to  file  his  appeal  within 
ten  days  after  notice  of  his  arrival,  if  in  his  judgment 
justice  would  be  promoted  thereby,  requiring  such  pris- 
oner to  file  with  the  appeal  his  petition,  which  shall  be  at 
once  transmitted  to  the  minister. 

V. — New  trial 

44.  On  proof  of  the  perjury  of  any  important  witness 
of  the  prevailing  party  upon  a  material  point  affecting 
the  decision  of  a  suit,  the  consul  who  tried  it  may  within 
a  year  after  final  judgment  grant  a  new  trial,  on  such 
terms  as  he  may  deem  just. 

45.  Within  one  year  after  final  judgment  in  any  suit  in- 
volving  not  more  than  $500,  the  consul  who  tried  it,  or  his 
successor,  may  upon  sufficient  security  grant  a  new  trial. 


APPENDIX  125 

when  justice  manifestly  requires  it;  if  exceding  $500, 
with  concurrence  of  the  minister. 

VI. — Habeas  corpus 

46.  No  consul  shall  recognize  the  claim  of  any  Amer- 
ican citizen  to  hold  any  person  in  slavery  or  bondage 
within  the  Turkish  Empire. 

47.  Upon  application  of  any  person  in  writing  and 
under  oath,  representing  that  he  or  any  other  person  is 
enslaved,  unlawfully  imprisoned,  or  deprived  of  his 
liberty  by  any  American  citizen  within  the  jurisdiction  of 
a  consul,  such  consul  or  the  consul-general  may  issue  his 
writ  of  habeas  corpus  directing  such  citizen  to  bring  said 
person,  if  in  his  custody  or  under  hi's  control,  before  him, 
and  the  question  shall  be  determined  summarily,  subject 
to  appeal. 

VII. — Divorce 

48.  Libels  for  divorce  must  be  signed  and  sworn  to 
before  the  consul,  and  on  the  trial  each  party  may  testify. 

49.  The  consul,  for  good  cause,  may  order  the  attach- 
ment of  libellee's  property  to  such  an  amount  and  on 
such  terms  as  he  may  think  proper. 

50.  He  may  also,  at  his  discretion,  order  the  husband  to 
advance  to  his  wife  or  pay  into  court  a  reasonable  sum  to 
enable  her  to  prosecute  or  defend  the  libel,  with  a  rea- 
sonable monthly  allowance  for  her  support  pending  the 
proceedings. 

51.  Alimony  may  be  awarded  or  denied  the  wife  on  her 
divorce  at  his  discretion.  Custody  of  the  minor  children 
may  be  decreed  to  such  party  as  justice  and  the  children's 
good  may  require. 

52.  Divorce  releases  both  parties,  and  they  shall  not  be 
remarried  to  each  other. 

53.  Costs  are  at  the  discretion  of  the  consul. 

VIII. — Marriage 

54.  Each  consul  shall  record  all  marriages  solemnized 
by  him,  or  in  his  ofificial  presence,  and  at  the  end  of  each 
year  transmit  a  copy  to  the  Secretary  of  State  and  to 
the  consul-general. 


126  FOREIGNERS  IN  TURKEY 

IX. — Births  and  deaths 

55.  The  birth  and  death  of  every  American  citizen  oi 
protege  within  the  limits  of  his  jurisdiction  shall  likewise 
be  recorded  and  annually  transmitted. 

X. — List  of  citizens  and  proteges 

56.  Each  consul  shall  prepare  and  keep  a  correct  list  of 
all  adult  male  citizens  of  the  United  States  living  within 
his  jurisdiction,  with  their  age,  birthplace,  occupation, 
residence,  and  year  of  arrival  in  Turkey,  and  the  names, 
&c.,  of  the  members  of  their  families ;  adding  the  date  and 
court  in  case  of  naturalized  citizens. 

57.  Also  a  similar  list  of  all  proteges  of  the  United 
States,  adding  the  year  of  their  original  protection,  by 
whom  it  was  granted,  and  where;  also  the  date  of  their 
last  permit  of  residence  and  by  whom  issued. 

58.  A  copy  of  said  lists  shall  be  transmitted  to  the  Sec- 
retary of  State,  to  the  minister  resident  and  to  the  consul- 
general,  when  completed,  and  a  memorandum  of  the 
changes  at  the  end  of  each  year.  And  every  citizen  and 
protege  is  required  to  register  himself  and  family  at  the 
consulate  each  December. 

XI. — Bankruptcy,  partnership,  probate,  &c. 

59.  Until  promulgation  of  further  regulations,  consuls 
will  continue  to  exercise  their  former  lawful  jurisdiction 
and  authority  in  bankruptcy,  partnership,  probate  of 
wills,  administration  of  estates,  and  other  matters  of 
equity,  admiralty,  ecclesiastical  and  common  law  not 
specially  provided  for  in  the  foregoing  orders,  according 
to  such  reasonable  rules,  not  repugnant  to  the  Constitu- 
tion, treaties,  and  laws  of  the  United  States,  as  they  may 
find  necessary  or  convenient  to  adopt. 

XII. — Seamen 

60.  In  proceedings  or  prosecutions  instituted  by  or 
against  American  seamen,  the  consul  may,  at  his  discre- 
tion, suspend  any  of  these  rules  in  favor  of  the  seaman, 
when,  in  his  opinion,  justice,  humanity,  and  public  prop- 
erty may  require  it. 


APPENDIX  127 

XIII. — Criminal  proceedings 

61.  Complaints  and  information  against  American  citi- 
zens should  always  be  signed  and  sworn  to  before  the 
consul,  when  the  complainant  or  informant  is  at  or  near 
the  consul's  post. 

62.  All  complaints  and  informations  not  so  signed  and 
sworn  to  by  a  citizen  of  the  United  States,  and  all  com- 
plaints and  informations  in  capital  cases,  must  be  authen- 
ticated by  the  consul's  certificate  of  his  knowledge  or 
belief  of  the  substantial  truth  of  enough  of  the  complaint 
or  inlormation  to  justify  the  arrest  of  the  party  charged. 

63.  No  citizen  shall  be  arraigned  for  trial  until  the  of- 
fense charged  is  distinctly  made  known  to  him  by  the 
consul  in  respondent's  own  language;  in  cases  of  magni- 
tude, and  in  all  cases  when  demanded,  an  attested  copy 
(or  translation)  of  the  complaint,  information,  or  state- 
ment authenticated  by  the  consul  shall  be  furnished  him 
in  his  own  language  as  soon  as  may  be  after  his  arrest. 

64.  The  personal  presence  of  the  accused  is  indispen- 
sable throughout  the  trial. 

65.  He  shall  always  have  and  be  informed  of  his  right 
to  testify,  and  cautioned  that  if  he  chooses  to  offer  him- 
self as  a  witness,  he  must  answer  all  questions  that  may 
be  propounded  by  the  consul  or  his  order,  like  any  other 
witness. 

66.  The  government  and  the  accused  are  equally  en- 
titled to  compulsory  process  for  witnesses  within  the 
jurisdiction  of  the  United  States;  and  if  the  consul  be- 
lieves the  accused  unable  to  advance  the  fees,  his  neces- 
sary witnesses  shall  be  summoned  at  the  expense  of  the 
United  States. 

67.  When  punishment  is  by  fine,  costs  may  be  included 
or  remitted  at  the  consul's  discretion ;  an  alternative  sen- 
tence of  not  less  than  30  days'  imprisonment  may 
take  effect  on  non-payment  of  any  part  of  the  fine  or 
costs  adjudged  in  any  criminal  proceeding. 

68.  Any  prisoner  before  conviction  may  be  admitted 
to  bail  by  the  consul  who  tries  him,  except  in  capital  cases. 

69.  No  prisoner  charged  with  a  capital  offense  shall  be 


128  FOREIGNERS  IN  TURKEY 

admitted  to  bail  where  the  proof  is  evident  or  the  pre- 
sumption of  his  guilt  great.  1 

70.  After  conviction  and  appeal,  the  prisoner  may  be 
admitted  to  bail  only  by  the  minister  or  consul-general. 

71.  Any  citizen  of  the  United  States  offering  himself  as 
bail  shall  sign  and  swear  before  the  consul  to  a  schedule 
of  unemcumbered  property  of  a  value  at  least  double  the 
amount  of  the  required  bail. 

72.  Any  other  proposed  bail  or  security  shall  sign  and 
swear  before  the  consul  to  a  similar  schedule  of  unem- 
cumbered personal  property  within  the  local  jurisdiction 
of  the  consulate,  or  he  may  be  required  to  deposit  the 
amount  in  money  or  valuables  with  the  consul. 

73.  Unless  such  sufficient  citizen  becomes  bail,  or  such 
deposit  is  made,  at  least  two  sureties  shall  be  required. 

74.  Any  American  bail  may  have  leave  of  the  consul  to 
surrender  his  principal  on  payment  of  all  costs  and 
expenses. 

75.  Any  complainant,  informant,  or  prosecutor  may  be 
required  to  give  security  for  all  costs  of  the  prosecution, 
including  those  of  the  accused ;  and  every  complainant, 
&c.,  not  a  citizen  of  the  United  States  shall  be  so  requited, 
unless  in  the  consul's  opinion,  justice  will  be  better  pro- 
moted otherwise;  and  when  such  security  is  refused  the 
prosecution  shall  abate. 

HONORABLE  ACQUITTAL 

76.  When  the  innocence  of  the  accused  both  in  law  and 
in  intention  is  manifest,  the  consul  shall  add  to  the  usual 
judgment  of  acquittal,  the  word,  "Honorably." 

'jy.  In  such  case  judgment  may  be  given  and  execution 
issued  summarily  against  any  informer,  complainant,  or 
prosecutor  for  the  whole  costs  of  the  trial,  including  those 
of  the  accused,  or  for  any  part  of  either  or  both,  if  the 
proceeding  appears  to  have  been  groundless  and  vexa- 
tious, originating  in  corrupt,  malicious,  or  vindictive 
motives. 

78.  Consuls  will  ordinarily  encourage  the  settlement  of 
all  prosecutions  not  of  heinous  character  by  the  parties 
aggrieved  or  concerned. 


APPENDIX  129 

XIV.— Oaths 

79.  Oaths  shall  be  administered  in  some  language  that 
the  witness  understands. 

80.  A  v/itness  not  a  Christian  shall  be  sworn  or  ex- 
amined according  to  his  religious  belief. 

81.  An  avowed  atheist  shall  not  be  sworn,  but  may 
affirm  under  the  pains  and  penalties  of  perjury,  the 
credibility  of  his  evidence  being  for  the  consideration 
of  the  consul. 

82.  A  Christian  conscientiously  scrupulous  of  an 
oath  may  affirm  under  the  pains  and  penalties  of  perjury. 

XV. — Dockets,  records,  &c. 

83.  Each  consul  shall  keep  a  regular  docket  or  calendar 
of  all  civil  actions  and  proceedings,  entering  each  case 
separately,  numbering  consecutively  to  the  end  of  his 
term  of  office,  with  the  date  of  filing,  the  names  of  the 
parties  in  full,  their  nationality,  the  nature  of  the  pro- 
ceeding, the  sum  or  thing  claimed,  with  mitiutes  and 
dates  of  all  orders,  decrees,  continuances,  appeals,  and 
proceedings  until  final  judgment. 

84.  He  shall  keep  another  regular  docket  for  all  crim- 
inal cases  with  sufficient  similar  memoranda. 

85.  Upon  final  judgment  each  case  shall  be  recorded 
in  a  book  of  records,  at  sufficient  length  to  identify  it 
and  prevent  a  second  proceeding  for  the  same  cause. 

86.  Civil  proceedings  are  to  be  kept  distinct  from 
criminal  and  recorded  in  separate  books,  and  returns  of 
each  made  to  the  consul-general  at  the  end  of  each  year. 

87.  Each  docket  and  book  of  records  shall  contain  an 
index. 

88.  All  original  papers  shall  be  filed  at  once  and  never 
removed ;  no  person  but  an  officer  of  the  consulate  or  the 
minister  should  be  allowed  access  to  them ;  all  papers 
in  a  case  must  be  kept  together  in  one  inclosure  and 
numbered  as  in  the  docket  with  the  parties'  names,  the 
nature  of  the  proceeding,  the  year  of  filing  the  petition 
and  of  final  judgment  conspicuously  marked  on  the  in- 
closure and  each  year's  cases  kept  by  themselves  in  their 
order. 


I30  FOREIGNERS  IN  TURKEY 

XVI. — Limitation  of  actions  and  prosecutions 

89.  Heinous  offenses,  not  capital,  must  be  prosecuted 
within  six  years ;  minor  offenses  within  one. 

90.  Civil  actions  based  on  written  promise,  contract, 
or  instrument  must  be  commenced  within  six  years  after 
the  cause  of  action  accrues;  others  within  two. 

91.  In  prosecutions  for  heinous  offenses,  not  capital, 
and  in  civil  cases  involving  more  than  $500,  any  absence 
of  respondent  or  defendant  for  more  than  three  months 
at  a  time  from  Turkey  shall  be  added  to  the  limitation ; 
and  in  civil  cases  involving  more  than  $100  the  period 
during  which  the  cause  of  action  may  be  fraudulently 
concealed  by  defendant  shall  likewise  be  added. 

92.  No  action  in  contract,  replevin,  or  wrong  shall  be 
commenced  for  less  than  $5,  no  trustee  process  for  less 
than  $10,  no  property  attached  for  less  than  $25,  nor 
the  person  arrested  for  less  than  $50;  and  if  petitioner 
recovers  less  than  the  respective  amount  in  either  case, 
he  shall  pay  all  costs  unless  for  special  reasons  to  the 
contrary. 

XVII. — General  provisions 

93.  All  trials  and  proceedings  in  the  United  States 
consular  courts  in  Turkey  shall  be  open  and  public  and 
conducted  in  the  English  language. 

94.  Papers  and  testimony  in  a  foreign  language  shall 
be  translated  into  English  by  a  sworn  interpreter  ap- 
pointed by  the  consul ;  in  civil  cases  to  be  paid  by  peti- 
tioner. Oaths  and  questions  shall  be  translated  by  the 
interpreter  from  the  English  for  any  witness  who  does 
not  understand  English. 

95.  Parties  may  be  required  to  file  their  petitions,  an- 
swers, complaints,  informations,  and  all  other  papers 
addressed  to  the  court,  in  English,  or  they  may  be  trans- 
lated by  the  interpreter,  at  the  consul's  discretion.  All 
testimony  must  be  taken  in  writing  in  open  court  by  the 
consul  or  his  order  signed  by  the  witness  after  being 
read  over  to  him  for  his  approval  and  correction,  and  it 
shall  form  part  of  the  papers  in  the  case. 

96.  The  consul  may  adjourn  his  court  from  time  to 


APPENDIX  131 

time  and  place  to  place  within  his  jurisdiction,  always 
commencing  proceedings  and  giving  judgment  at  the 
consulate. 

97.  The  first  Monday  of  each  month  shall  be  a  regular 
court  day  to  which  civil  actions  will  stand  adjourned 
unless  otherwise  provided  for. 

98.  No  court  shall  sit  on  February  22,  July  4,  Decem- 
ber 25,  or  on  any  Sunday. 

99.  All  processes  not  served  by  the  consul  personally 
must  be  executed  by  an  officer  of  the  consulate,  who 
shall  sign  and  swear  to  his  return  before  the  consul, 
specifying  the  time  and  mode  of  service  and  annexing 
an  account  of  his  fees ;  process  from  the  consul-general 
shall  be  served  by  the  marshal  of  his  deputy. 

100.  On  appeal,  copies  of  all  the  papers  must  be  paid 
for  in  advance  by  the  appellant,  except  in  criminal  cases 
where  respondent  is  unable  to  pay. 

lOi.  Any  person  interested  is  entitled  to  a  copy  ot 
any  paper  on  file  on  prepayment  of  the  fee. 

102.  Reasonable  clearness,  precision,  and  certainty 
should  be  required  in  the  papers,  and  substantial  justice 
and  all  practicable  dispatch  is  expected  in  the  decisions ; 
but  technical  accuracy  is  not  essential. 

103.  The  word  "consul"  is  intended  to  include  the 
consul-general  and  any  vice-consul  or  deputy  consul 
actually  exercising  the  consular  power  at  any  consulate, 
unless  the  sense  requires  a  more  limited  construction. 

104.  Each  associate  in  a  consular  trial  shall,  before 
entering  on  his  duties,  be  sworn  by  the  consul.  Before 
taking  the  oath,  he  may  be  challenged  by  either  party 
and  for  sufficient  cause  excused  and  another  drawn. 

105.  Consuls  will  always  preserve  order  in  court,  pun- 
ishishing  summarily  any  contempt  committed  in  their 
presence  or  any  refusal  to  obey  their  lawful  summons, 
or  order,  by  imprisonment  not  exceeding  24  hours,  or  by 
fine  not  exceeding  $50,  and  costs. 

106.  Every  party  to  a  civil  or  criminal  proceeding  may 
be  heard  in  person  or  by  attorney  of  his  choice,  or  by 
both,  but  the  presence  of  counsel  shall  be  under  exclusive 
control  and  discretion  of  the  consul. 


132  FOREIGNERS  IN  TURKEY  J 

107.  The  accounts  of  the  consular  courts  shall  be  kept 
in  United  States  currency,  and  every  order  or  deposit, 
decree  of  costs,  taxation  of  fees,  and  generally  every 
such  paper  issuing  originally  from  the  court,  shall  be 
expressed  in  dollars  and  cents  and  satisfied  in  United 
States  metallic  money  or  its  equivalent  coin  as  fixed  by 
law. 

XVIII. — Proceedings  with  foreigners 

108.  All  petitions,  informations,  complaints,  and  othei 
papers  from  subjects  of  the  Sublime  Porte,  or  subjects 
or  citizens  of  any  other  friendly  power,  should  be  com- 
municated through  the  Turkish  authorities  or  the  con- 
sulate of  such  other  power. 

109.  All  notices,  answers,  &c.,  should  be  communicated 
to  such  subject  or  citizens  through  said  authorities  or 
such  consulate,  respectively. 

XIX. — Mixed  commissions 

1 10.  When  any  foreign  petitioner  is  entitled  to  a  mixed 
commission  the  suit  shall  be  tried  at  the  United  States 
consulate  or  such  place  as  the  United  States  consul  may 
direct,  and  proceedings  shall  be  conducted  as  nearly  as 
may  be  as  in  suits  between  citizens  of  the  United  States. 

111.  Every  commissioner  nominated  by  a  foreign  au- 
thority must  have  his  appointment  acknowledged  and 
approved  by  the  United  States  consul  before  taking  his 
seat  on  the  commission ;  and  all  objections  to  the  approval 
of  the  nomination  or  appointment  of  either  commissioner 
shall  be  heard  and  determined  by  the  consul  summarily 
and  without  appeal. 

112.  The  commissioner  appointed  by  the  United  States 
consul  should  be  a  citizen  of  the  United  States,  when 
practicable ;  he  will  always  preside,  and  his  presence  is 
indispensable  throughout  the  proceedings. 

XX. — Design  of  the  rules 
The  promulgation  of  these  rules  abrogates  no  authority 
hitherton  lawfully  exercised  by  consuls  not  inconsistent 
herewith. 

XXI. — Changes 
Whenever,  in  the  opinion  of  the  consul,  a  change  be- 


APPENDIX  133 

comes  necessary  in  the  rules,  the  proposed  change,  with 
the  reasons,  shall  be  communicated  in  writing  to  the 
minister,  and,  the  change  approved  by  him,  be  submitted 
to  the  other  consuls  and  published  over  his  signature 
before  going  into  effect. 

Amendments    to    the   foregoing   Rules   decreed   by    the 
Minister  Resident  to  Constantinople,  June  14,  1880 

TO   THE   CONSULS  GENERAL  AND   CONSULS  OF  THE   UNITED 
STATES  OF  AMERICA   IN   THE  OTTOMAN    EMPIRE 

It  appearing  to  me  that  neither  the  common  law,  nor 
the  laws  of  equity  and  admiralty,  nor  the  Statutes  of  the 
United  States  furnish  appropriate  and  sufficient  remedies 
for  the  cases  hereinafter  mentioned  and  provided  for, 
therefore  I,  Horace  Maynard,  Minister  Resident  of  the 
United  States  at  the  Sublime  Porte,  by  virtue  and  in 
pursuance  of  Section  4086  of  the  Revised  Statutes  of  the 
United  States,  do  hereby  decree  as  follows : 

Section  i.  Whenever  any  citizen  of  the  United  States 
shall  have  died  leaving  any  personal  estate  within  the  ter- 
ritorial jurisdiction  of  any  Consular  officer  of  the  United 
States  appointed  to  reside  in  the  Ottoman  Empire,  and 
such  death  having  occurred  in  any  country  or  place,  not 
within  such  Consular  jurisdiction,  then  such  Consular 
officer  shall  be  invested  with  and  have  the  same  powers 
and  duties  in  relation  to  and  over  such  personal  estate  as 
are  given  by  section  1709  of  the  Revised  Statutes  to  such 
Consular  officer  in  relation  to  and  over  the  personal 
estates  of  citizens  of  the  United  States  who  shall  have 
died  within  his  Consulate. 

Section  2.  The  words  "-Consular  Officer  of  the  United 
States"  as  used  in  the  next  preceding  Section  are  meant 
to  include  the  Agent  and  Consul  General  at  Cairo,  the 
Consul  General  at  Constantinople,  and  the  vice  consuls 
general,  the  consuls  and  vice  consuls  appointed  to  reside 
in  the  Ottoman  Empire,  and  no  others. 

Section  j.  The  following  consular  officers  to  wit,  said 
Agent  and  Consul  General  and  said  Consuls  General  and 
Consuls  shall  each  have  the  power,    whenever    in    his 


134 


FOREIGNERS  IN  TURKEY 


opinion  it  is  necessary,  to  appoint  an  administrator  or 
administrators  to  take  charge  of  and  administer  such  per- 
sonal estate  of  any  deceased  citizen  of  the  United  States 
as  shall  be  within  the  territorial  jurisdiction  of  the  oflficer 
making  such  appointment  giving  to  such  administrator  or 
administrators  and  investing  him  or  them  with  all  the 
powers,  and  imposing  upon  him  all  the  duties  and  obliga- 
tions in  relation  to  such  estates  as  might  have  been 
exercised  by  or  would  have  devolved  upon  such  consular 
oflficer. 

Section  4.  Such  Agent  and  Consul-General,  Consul- 
General,  and  Consuls  shall  each  also  have  the  power  to 
appoint  a  guardian  or  guardians  to  take  charge  of  the 
property  and  persons  and  to  protect  the  rights  of  an)- 
infant  being  a  citizen  of  the  United  States  and  having 
property  or  being  himself  within  the  territorial  juris- 
diction of  such  consular  oflficer,  giving  to  such  guardian 
or  guardians  all  necessary  power  and  authority  to  fulfill 
their  duties  as  such. 

Section  5.  In  the  case  of  the  appointment  of  any  ad- 
ministrator or  guardian  under  the  foregoing  Sections  3 
and  4,  it  shall  be  the  duty  of  the  officer  making  such  ap- 
pointment to  require  of  and  take  from  such  administrator 
or  guardian  such  surety  for  the  faithful  performance  of 
his  duties  as  such  oflficer  shall  deem  adequate ;  and  such 
oflficer  shall  also  have  the  power  to  compel  such  adminis- 
trator or  guardian  to  render  from  time  to  time  as  he  may 
require  an  account  of  his  proceedings  and  to  disburse 
and  pay  over  any  and  all  moneys  in  his  hands  as  he,  the 
said  consular  oflficer  shall  direct. 

In  testimony  whereof  the  said  Horace 
Maynard,  Minister  Resident  as  aforesaid 
(L.S.)  hath  hereunto  set  his  hand  and  caused  the 
seal  of  the  Legation  to  be  aflfixed  at  the 
Legation  of  the  United  States  at  Con- 
stantinople, this,  the  14th  day  of  June 
A.D.  1880. 

Horace  Maynard. 
By  the  Minister  Resident, 
G.  H.  Heap, 

Secretary  of  Legation. 


J 


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New  York. 
Hautefeuille,  Laurent  B.,  Histoire  de  Droit  Maritime 

International.    Paris,  1858. 
Heyd,  Wilhelm,  Histoire  du  Commerce  du  Levant, 

etc.    Leipzig,  1885- 1886. 
Miltitz,  Alexandre  de,  Manuel  des  Consuls.    London 

and  Berlin,  1837- 1842. 
Pardessus,  J.  M.,  La  Collection  des  lois  maritimes 

anterieures  au  XVIII.  siecle.     Paris,   1838-1845. 

Imprimerie  royale. 
Warden,  D.  B.,  The  Origin,  Nature  and  Influence  of 

Consular  Establishments.    Paris,  1813. 

Special  Works: 

Amari,  Michele,  Dai  Diplomi  Arabi,  etc.     Firenze, 

1863.  ... 
Daru,  Pierre,  Historia  della  Republica  di  Venezia. 

Paris,  1821. 
Marin,  Carlo  Antonio,   Storia  civile  e  politica  del 

commercio  de  Veneziani.    Venezia,  1798- 1808. 
Muratori,  Ludovico  A.,  Rerum  Italicarum  Scriptores. 

Citta  de  Castello,  1900. 
Paris,  Louis,  Chronique  de   Nestor.     Paris,    1834- 

1835. 
Primaudaie,  P.,  Elie  de  la,  Les  Arabes  en  Sicilie  et 

en  Italie.  Paris,  1868. 
Sauli,  Lodovico,  Della  Colonia  de  Genovesi  in  Galata. 

Turin,  1831. 

135 


136  FOREIGNERS  IN  TURKEY 

Scott,  S.  P.,  History  of  the  Moorish  Empire  in 
Europe.     Philadelphia  and  London,  1904. 

Wenrich,  Johann  Geor.,  Rerum  ab  Arabis  in  Italia, 
etc.    Leipzig,  1845. 

Period  Subsequent  to  1453 
General  Works: 

Charriere,  Ernest,  Negotiations  de  la  France  dans 

le  Levant,  etc.     Paris,  1848- 1860. 
Eliot,  Sir  Charles   (Odysseus),  Turkey  in  Europe. 

London,  1900. 
Flassan,  M.  de,  Histoire  Generale  et  Raisonnee  de  la 

Diplomatic  FrauQaise,  etc.    Paris,  1809. 
Hammer,  Joseph,  Freiherr  von,  Geschichte  des  Os- 

manischer  Reichs.    Pest,  Wien,  1827-1835. 
Pears,  Sir  Edwin,  Turkey  and  its  People.     London, 

1912.     (2d.  ed.) 

Special  Works: 

"Ancien    Diplomat,"  Le  Regime  des  Capitulations. 

Paris,  1898. 
■  Angell,  James  B.,  Turkish    Capitulations.      Annual 

Report  of  American    Historical    Association    for 

1900. 
Belin,  Francois  Alphonse,  Des  Capitulations  et  des 

Traites  de  la  France  en  Orient.    Paris,  1878. 
Brunswik,  Benoit,  Etudes  Pratiques  sur  le  Question 

d'Orient,  Reforms  et  Capitulations.    Paris,  1869. 
Engelhardt,  Edouard,  La  Turquie  et  le  Tanzimat. 

Paris,  1882-1884. 
Hall,  W.  E.,  Foreign  Jurisdiction    of    the    British 

Crown.     Oxford,  1894. 
Hinckley,  F.  E.,  American  Consular  Jurisdiction  in 

the  Orient.    Washington,  igo6. 
Mandelstam,  Andre,  La  Justice  Ottoman  dans  ses 

Rapports  avec  les  Puissances  fitrangeres.     Paris, 

1911.     (2d.  ed.) 
Moore,  John  Bassett,  International  Law  Digest  (un- 
der Exterritoriality).     Washington,  1906. 


BIBLIOGRAPHY  I37 

Piggott,  Sir  Francis  T.,  Exterritoriality.     London, 

1892. 
Rausas,   Pelissie  du,  Le  Regime  des  Capitulations 

dans  L'Empire  Ottoman.    Paris,  1910.     (2d.  ed.) 
Tarring,  Judge  C.  J.,  British  Consular  Jurisdiction  in 

the  East.    London,  1887. 
Van  Dyck,  Edward  A.,  Report  on  the  Capitulations 

of  the  Ottoman  Empire.    In  two  Parts :  Senate  Ex. 

Doc.  3.     Special  Session  of  46th  Congress ;  and 

Senate  Ex.  Doc.  No.  87,  ist  Session,  47th  Congress. 
Wharton,  Francis,  International  Law  Digest  (under 

ExterritoriaHty).    Washington,  1887.     (2d.  ed.) 

Turkish  Laws  and  Usages: 

Aristarchi,  Gregorios,  Legislation  Ottomane.  Con- 
stantinople, 1 873- 1 888. 

D'Ohsson,  Mouradjea,  Tableau  General  de  L'Em- 
pire Ottoman.    Paris,  1788- 1824. 

Gatteschi,  D.,  Manuale  de  Diritto  Ottomano,  etc. 
Alexandria,  Egypt,  1865. 

Rodwell,  J.  M.,  The  Koran.  London  and  New  York, 
1909.     (Everyman's  Library.) 

Steen  de  Jehay,  F.  M.  J.  G.  van  den,  De  la  situation 
legale  des  sujets  Ottomans  non-musulmans.  Brus- 
sels, 1906. 

Young,  George,  Corps  de  Droit  Ottoman.  Oxford, 
1 905- 1 906. 

Treaties: 
Elliot,  Jonathan,  The  American  Diplomatic  Code,  etc., 

Washington,  1834. 
Hertslet,  Sir  Edward,  Treaties  in  Force.     London, 

1875. 

Malloy,  W.  M.,  Treaties,  etc.,  of  the  United  States. 
Washington,  1910. 

Martens,  F.  F.,  Receuil  des  Traites,  etc.  St.  Peters- 
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Noradounghian,  Gabriel,  Receuil  d'actes  internation- 
aux  de  I'Empire  Ottoman,  etc.    Paris,  1897-1900. 

Testa,  Barons  Alfred  and  Leopold  de,  Receuil  des 
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138  FOREIGNERS  IN  TURKEY 

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Despagnet,  F.,  Precis  de  Droit  International  Prive. 
Paris,  1899.     (3d.  ed.) 

Dicey,  A.  V.,  Conflict  of  Laws.  London,  1896. 
Latest  edition,  London,  1908. 

Fiore,  Pascuale,  Droit  International  Prive.  Paris, 
1890-1891. 

Hall,  W.  E.,  A  Treatise  on  International  Law.  (6th. 
ed.)     Oxford,  1909. 

Heffter,  A.  W.,  Droit  International  Public.  Berlin, 
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Holland,  T.  E.,  The  Elements  of  Jurisprudence.  Ox- 
ford, 1906.    (loth.  ed.) 

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Berlin,  1885- 1889. 

Kent,  James,  Commentary  on  International  Law. 
Cambridge  and  London,  1878.     (2d.  ed.) 

Laurent,  Francois,  Droit  Civil  International.  Brus- 
sels, 1880-1881. 

Phillimore,  Sir  Robert,  Commentaries  upon  Interna- 
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Pillet,  Antoine,  Principes  de  Droit  International 
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Savigny,  F.  Karl  von,  Private  International  Law. 
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Story,  Joseph,  Conflict  of  Laws.  Boston  and  Lon- 
don, 1896.     (3d.  ed.) 

Twiss,  Sir  Travers,  Law  of  Nations.    Oxford,  1884. 

Westlake,  John,  Private  International  Law.  London, 
1880.     (2d.  ed.)    Third  edition,  1890. 

Wharton,  Francis,  Conflict  of  Laws.  Philadelphia, 
1872. 


INDEX 


Actions  and  Prosecutions 

United   States   Consular   Court  Regulations,    130 
Actor  sequitur  forutn  rei 

foreigners  sue  in  consular  courts  of  defendant  in  accordance 
with  principle  of,  67 
Administration  of  Estates 

U.  S.  Consular  Court  Regulations,  133 
Adrianople,  Treaty  of    (see  Venice) 
Afarian 

arrest  and  trial  of,  by  Turks,  78 
Ahd-nameh 

correct  term  for  Capitulations,  29 
Aliens    (see  Foreigners) 

international  law  concerned  with  protection  of  rights  of,  loi 

comitas  gentium  not  basis  of  rights  of,  104,  112 

proper  subject  of  international   agreements,   105 
Amalfi 

consular  court  in  Naples,  Amalfitan  Tables,   15 
American  Missionaries 

customs  exemptions  of,  95 
Appeals 

U.  S.  Consular  Court  Regulations,  124 
Arabs 

exterritorial  privileges  of,  in  China,  10 

exterritorial    privileges    of    foreigners    in    Sicily    under    rule 
of,  24 
Armenians 

exterritorial  privileges  granted  by  Justinian,  10 

exterritorial  privileges  of  Patriarchate,  18 
Arbitral  Award  of  Ambassadors  of  Six  Powers 

rights  of  Greece  after  war  of  1897,  41,  89 

139 


I40 


INDEX 


Arrest 

of  foreigners  by  consular  officials,  62 

of  foreigners  by  Turkish  police  in  cases  of  flagrant  delit,  62 

of  foreigners  accused  before  Turkish  courts,  90 

U.  S.  Consular  Court  Regulations,  120 
Article  IV  of  United  States  Treaty,  41,  76 

text  supported  by  United  States,  77 

text  supported  by  Turkey,  77 

views  of  Secretary  Frelinghuysen  concerning,  78 

test  case  of  Vartanian  and  Afarian,  78 

views  of  Andre  Mandelstam  formerly  Dragoman  of  Russian 
Embassy  concerning,  79 

conciliatory   attitude  of   United   States   in   respect   to   inter- 
pretation of,  81 
Assessors 

presence   of    foreign   assessors   in    Mixed   Commercial   Tri- 
bunals, 83 

restraining  influence  of,  88 
Associates 

of  U.  S.  Consuls  in  criminal,  capital  and  civil  cases,  56 
Attachment  and  arrest 

U.  S.  Consular  Court  Regulations,  120 
Austria-Hungary 

treaty  with  Turkey,  41 

consular  courts  of,  54 

practice   of,   in   respect   to   nationals   sentenced   by   Turkish 
courts,  80 

B 

Bailo,  Bajuli,  Bailie 

Venetian  magistrate,  13,  30 

French  magistrate,  34 
Banishment 

U.  S.  Consuls  not  authorized  to  banish  American  convicts,  64 
Bankruptcy 

within  province  of  consular  courts,  75 

U.  S.  Consular  Court  regulations,  126 
Barbarian,  Hostis 

Use  of  terms,  9 
Belgium  ^ 

treaty  with  Turkey,  41 


INDEX  141 

arrest  and  trial  of  Joris,  Belgium  subject,  by  Turks,  80 

claims  criminal  jurisdiction  over  nationals,  76 

practice   of,    in    respect   to   nationals    sentenced   by    Turkish 
courts,  89 
Births  and  deaths 

U.  S.  Consular  Court  Regulations,  126 
Bouree 

Real  Estate  Protocol  drawn  up  by,  French  Ambassador,  94 
Brazil 

treaty  with  Turkey,  41 
British  (see  England) 
Byzantium 

treaty  with  Warings  of  Russia,  11 

c 

Cadiz 

exterritorial  privileges  of  foreign  merchants  in,   10 
Capitulations,  27-47 

use  of  term,  29 

privileges  of  Franks  and  Catalans  confirmed  by  Soliman,  II, 
32 

treaty  of  1535  between  Soliman  II  and  Francis  I,  33 

renewal  of,  37 

treaty  of  1740,  38,  75 

revision  of  regime  of,  96 
Catalans 

privileges  of  confirmed  by  Soliman  II,  32 
Cavass 

arrest  of  foreigners  by,  52 

consular  proteges,  93 
Charlemagne 

privileges  obtained   from  Haroun-el-Raschid  by,    11 
Chinese 

method  of  adjusting  diflferences  without  appeal  to  courts,  117 
Citizens 

registration  of,  U.  S.  Consular  Court  Regulations,  126 
Civil  Suits  and  Proceedings 

provisions  of  Capitulations  of  1535  in  respect  to,  34 

jurisdiction  by  consular  courts  between  foreigners  in,  52,  67 

presence  of  dragoman  in,  24,  82,  84,  88 

provisions  of  Capitulations  of  1740  in  respect  to,  39 


142 


INDEX 


Turkish  Civil  Code,  87 

reform  of  Turkish  laws  in  respect  to,  112 

in  U.  S.  Consular  Courts,  119 
Claudius,  Emperor 

privileges  accorded  merchants  in  Cadiz,  10 
Comitas  Gentium 

rights  of  aliens  not  dependent  on,  104-105 
Commerce 

cradle  of  international  law,  8 

Mixed  Commercial  Tribunals,  82 

presence  of  assessors  in  commercial  suits,  83 

Commercial   Code,  87 

usury  not  countenanced  by  Moslem  law,  87 
Conflict  of  Laws    (see  Private  International  Law) 
Constantinople 

Armenians  in,  10 

Venetians  in,  13,  29 

Genoese  in,  14,  27,  29 

Moslems  in,  17 
Consuls 

use  of  term  by  U.  S.  Statutes,  55 

police  powers  of,  61 

limited  police  powers  of  American  Consuls,  62 

power  of,  to  punish,  64 

execution  of  death  penalty  by,  65 

no  power  to  banish,  64 

various  juridical  acts  of,  70 
Consular  Courts 

jurisdiction  of,  over  foreigners  of  same  nationality,  52 

jurisdiction   of,   in   matters   of   inheritance,    rent,   mortgage, 
etc.,  53 

forms  and  procedure  of,  54 

jurisdiction  of,  over  foreigners  of  different  nationality,  67 

lex  loci  often  applied  by,  71 

jurisdiction  in  matters  affecting  personal  status,  113 

jurisdiction  in  various  matters,  115 

judicial  powers  which  should  be  granted  to,  116 
Consular  Courts  of  the  United  States 

organization  and  procedure  of,  54-61 

rules  and  regulations  of,  1 19-134 

jurisdiction  of,  how  exercised,  60 


INDEX  143 

powers  of  Ministers  to  make  regulations  for,  59 

powers  of,  to  punish,  64 

jurisdiction  of,  in  divorce,  71 

jurisdiction  in  criminal  cases,  55,  76,  127 

civil  jurisdiction  of,  55 

original  jurisdiction  of,  55 

associates  in  criminal  cases,  56;  in  capital  cases,  56;  in  civil 
cases,  56 

settlement  of  civil  cases  and  minor  offenses,  57 

forms  of  proceedings,  57 

evidence  in,  57 

appeals  to  Minister,  57 

judgments  final,  124 

execution  of  judgments,  58,  121 

court  costs,  58,  122 

no  juries,  61 
Consular  Immunities 

of  diplomatic  character,  92 

customs  exemptions,  92 
Consular  Proteges  (see  Proteges) 
Correspondence 

inviolability  of,  95 

foreign   post-offices,  95 
Costs 

U.  S.  Consular  Court  Regulations  in  respect  to,  122 
Cour  de  Cassation 

restrictions   on   jurisdiction   of,   86 
Criminal  Suits  and  Proceedings 

in  cases  between  foreigners,  52 

in  cases  between  foreigners  and  natives,  ^6 

provisions  of  Capitulations  of  1740  in  respect  to,  22 

claims   of  Turkey  to  jurisdiction   in   cases   involving  public 
law  and  order,  68 

claims  of  U.  S.  to  jurisdiction  over  Americans,  76 

jurisdiction  of  Tribunaux  Correctionnels,  82 

reform  of  Turkish  criminal  law,  112 

abandonment  of  jurisdiction  by  Powers,  112 

U.   S.   Consular   Court  Regulations   in   respect  to,    127,    (see 
Consular  Courts  of  the  United  States) 
Crusaders,  15 


144 


INDEX 


Customs 

international  servitude  in  respect  to,  30 

exemptions  for  religious  communities,  95 ;  for  consuls,  92 
Cyprus 

nominally     Turkish     but     enjoying     special     status     under 
England,  47 

D 

Dar-ul-harb 

applied  to  non-Moslems,  4 

use  of,  similar  to  barbarian  and  hostis,  9 
Dar-ul-Islam 

applied  to  Moslems,  5 
Denmark 

treaty  with  Turkey,  41 
Divorce 

by  American  Consuls,  71 

U.  S.  Consular  Court  Regulations,  125 
Djema'at 

use  of  term,  18 
Dockets,  Record,  etc. 

U.  S.  Consular  Court  Regulations,  129 
Don  Pacifico 

case  of,  cited,  102 
Domicile,  Inviolability  of,  90 

provisions  of  Capitulations  of  1740,  40 

provisions  of  Real  Estate  Protocol,  45 

hotels,     apartments,     printing     establishments,     bookstores, 
liquor  shops,  places  of  amusement,  etc.,  90 
Dragoman 

provisions  of  Capitulations  of  1740  in  respect  to  presence  of, 
in  suits  between  foreigners  and  natives,  24 

judicial  powers  of,  24 

presence   of,    in    Tribunaux    Correctionnels,    Nizamieh,    and 
Mixed  Tribunals,  82 

usage  respecting,  84 

restraining  influence  of,  88 

renunciation  of  powers  of,  113 

E 

Efrenji  ^ 

applied  to  all  Europeans,  32 


INDEX  145 

Egypt 

nominally  Turkish  territory  but  enjoying  special  status  under 
England,  47 

Mixed  International  Courts,  113 
Eman 

use  of  term,  4,  6 
England 

right  of,  to  adhere  to  Capitulations  of  153S,  30 

treaty  with  Turkey,  41 

consular  courts  of,  54;  right  of  Ottoman  subjects  to  sue  in,  67 

British  Consuls  authorized  to  marry  foreigners  of  different 
nationality,  70 

practice   of,    in    respect   to    nationals    sentenced   by    Turkish 
courts,  8g 

blockade  of  Venezuela  by,  102 

reparation  obtained  by,  in  case  of  Don  Pacifico,  102 

personality  of  laws  recognized  by  English  in  India,  24 
Execution  of  Judgments 

U.  S.  Consular  Court  Regulations,  121 
Exemption  and  discharge 

U.  S.  Consular  Court  Regulations,  122 
Exterritoriality    (see  Immunities  of  Jurisdiction) 

inadequacy  of  term,  3,  46 

foreigners  do  not  always  carry  with  them  exterritorially  their 
own  laws,  60,  61 
Extradition 

provisions  of  treaty  between  Byzantium  and  Warings,  11 

in  countries  under  exterritorial  regime,  64 

of  Tunstall,  Myers,  and  Surratt,  64 

proper  concern  of  international  law,   loi 


Foreigners   (see  Aliens) 

origin  of  exterritorial  rights  of,  3-24 
denoted  as  Mustemin  in  Moslem  lands,  6 
guarantees  to,  by  Moslem  law,  4,  6 
international   usage  concerning,  prior  to   1453,  8-17 
jurisdiction  of  consular  courts  in  suits  between,  52,  67 
right  of  recourse  to  Ottoman  courts,  66 
provisions  of  Capitulations  of  1740  respecting,  39 
suits  of,  before  Imperial  Divan,  34,  36 


146  INDEX 

Forum  delicti 

American,  British,  and  Greek  judicial  procedure  in  con- 
sular courts  based  on  principle  of,  63 

France 

privileges  obtained   for  Franks  by  Charlemagne,   11 
exterritorial  jurisdiction  granted  in  Tripoli  and  Alexandria, 

16;   privileges   confirmed  by  Soliman   II,  32 
Capitulations  of   1535,  33 
Capitulations  of  1740,  38 

extensive  police  powers  of  French  Consuls,  61 
practice  in  respect  to  nationals  sentenced  by  Turkish  courts, 

89 
law  administered  in  consular  courts  of,  57 
jurisdiction  of  French  consuls  in  U.  S.  according  to  decision 
in  Goddard  v.  Luby,  115 

Francis  I 

treaty  with  Soliman  II,  33 
G 

Galata   (see  Genoese) 

Genoese 

separate  town  of  Galata  occupied  by,  14 

privileges  obtained  by,  in  Alexandria,  16,  27 

privileges  granted  by  Mohammed  the  Conqueror,  14,  27 

Germany  (see  Prussia) 

privileges  enjoyed  in  Novgorod  by  Germans  of  Wisby,  13 
practice  in  respect  to  nationals  sentenced  by  Turkish  courts, 

89 

blockade  of  Venezuela  by,  102 
Goddard  v.  Luby 

case  cited,  115 
Greece 

settlement  of  Greek  merchants  at  Naucratis,  9 

privileges  granted  Greek  monks  in  Palestine  by  Omar,  10 

powers  of  Greek  Patriarchate,  18 

treaty  with  Turkey,  41 

Arbitral  Award  of  Ambassadors  of  Six  Powers  respecting 
rights  of,  41 ;  provisions  of  Award  respecting  Greeks 
sentenced  by  Turkish  courts,  89 

reparation  obtained  from,  in  case  of  Don  Pacifico. 
Guardianship 

U.  S.  Consular  Court  Regulations,  134 


INDEX  147 

H 

Habeas  Corpus 

U.  S.  Consular  Court  Regulations,  125 
Hanseatic  League 

exterritorial  privileges  of  merchants  of,  14 
Haradj 

use  of  term,  5,  19 
Hedjaz 

foreigners  not  allowed  to  own  land  in,  42 
Holland 

treaty  with  Turkey,  41 

practice  in  respect  to  nationals  sent'enced  by  Turkish  courts, 
89 
Hostis  (see  Barbarian) 


Immunities   of  Jurisdiction    (see    Exterritoriality) 

origin  of,  3-24 

privileges  granted  by  treaty  between  Byzantium  and  Warings 
of  Russia,  II 

originally  common  practice  and  not  anomalous,  13 

modifications  of,  in  Turkey,  41,  96 

relation  of,  to  international  law,  101-118 
Immunities    of    Jurisdiction    in    Cases    Involving    Foreigners    of 
Same    Nationality,   52-66 

jurisdiction  of  consular  courts,  52 

procedure  of  consular  courts,  52 

law  administered  by,  59 

execution  of  law,  61 

arrest  of  foreigners,  62 

imprisonment  of  foreigners,  63 

remanding  of  convicted  foreigners  to  native  land,  64 

execution  of  death  penalty,  65 
Immunities    of    Jurisdiction    in    Cases    Involving    Foreigners    of 
Different  Nationalities,  66-71 

jurisdiction  of  consular  courts,  66,  67 

defendant  may  not  bring  cross-suit  in  own  consular  court,  69 

law  administered  and  executed,  69 

right  of  foreigners  to  sue  in  Turkish  courts,  66 

jurisdiction  of  British  courts  over  foreign  defendants,  67 


148  INDEX 

claim  of  Porte  to  jurisdiction  in  cases  affecting  public  law 
and  order,  68 

principle  of  locus  regit  actttm  applied  by  consular  courts,  70 

various  juridical  acts  of  consuls,  marriage,  etc.,  70 
Immunities  of  Jurisdiction  in  Matters  Affecting  Both  Foreigners 
and  Ottoman  Subjects,  75-90 

jurisdiction  of  Turkish  courts,  75 

jurisdiction  in  criminal  cases  claimed  by  U.  S.,  76 

courts  and  procedure,  81 

presence  of  Dragoman  in  Turkish  courts,  85 

presence  of  assessors,  83,  88 

summons  and  sentenoes  of  Turkish  courts,  86 

law  administered,  87 

execution  of  law,  89 
Imperial  Divan   (see  Porte) 

diplomatic  adjustment  of  judicial  questions  by,  39,  76 
Imprisonment 

in  Turkish  jails,  63 

in  native  land  for  appeal  or  punishment,  63 

for  debt,  90 

practice    in    respect    to    foreigners    sentenced    by    Turkish 
courts,  89 
India 

personality  of  laws  recognized  by  British  in,  24 
Inheritance 

jurisdiction  in  cases  of,  claimed  by  consular  courts,  53,  75 
International  Law 

protection  of  aliens  proper  concern  of,  loi,  102 

status  of  individuals  under,  loi 

relation  of  Private  International  Law  to,  103-112 

relation  of  immunities  of  jurisdiction  to,  100-118 

liberal  interpretation  of,  118 
International  Private  Law   (see  Private  International  Law) 
Italy 

consuls  in  London  and  Netherlands,  16 

exterritorial  privileges  obtained  through  Venetian  Capitula- 
tions, 32 

powers  of  Italian  Consuls  in  respect  to  marriage,  70 

practice  in  respect  to  subjects  sentenced  by  Turkish  courts,  89 

reparation  on  account  of  New  Orleans  riots  obtained  by,  102 

blockade  of  Venezuela  by,  102 


INDEX  149 

J 

Jails 

Consular,  6^ 

Turkish,  63,  90 
Jerusalem 

special  privileges  of  foreigners  in,  under  Crusaders,  15 

representative  of  Grand  Master  of  Rhodes  in,  16 
Jews 

attitude  of  Koran  towards,  5 

exterritorial  privileges  granted  to,  by  Turks,  7 
Joris 

arrest  and  trial  of  Belgian  subject  by  Turks,  80 
Judicial  Reforms,  76 

modifications   of    exterritorial   rights    after,   36 
Juridical  Acts 

in  accordance  with  local  usage,  60 

various  acts  performed  by  consuls,  70 
Juridical  Rights  of  Foreigners,  51-97 

not  based  on  any  single  treaty,  51 
Jury 

none  in  trials  by  U.  S.  Consular  Courts,  61 
Justinian 

grants  privileges  to  Armenians  in  Constantinople,  10 

K 

Kiafir-Kitaby 

applied  to  Christians  and  Jews,  5,  21 
Koran 

concerning  infidels,  5 

concerning  Jews,  Sabeites  and  Christians,  5 


Land,  Ownership  of  (see  Real  Estate) 
Letters  Rogatory 

employed  by  courts  in  ascertaining  foreign  law,  115 
Lex  Loci 

as  applied  by  consular  courts,  71 
Locus  Regit  Actum 

consular  courts  recognize  principle  of,  60,  6r 


150  INDEX 

M 

Marriage 

by  consuls,  71 

international  agreements  concerning,  105 

governed  by  local  laws,  60 

U.  S.  Consular  Court  Regulations  in  respect  to,  125 
Medjelle 

Ottoman  Civil  Code,  based  on  Sheri,  87 
Military  Exemption 

of  non-Moslems,  19,  20 
Mil'let 

creation  by  Mohammed  the  Conqueror,   18 

independent  religious  communities,   19 

recognized  as  nations  by  Young  Turks,  20 

exclusive  jurisdiction  in  matters  affecting  personal  statusj  113 
Minister 

use  of  term  in  U.  S.  Statutes,  55 
Mirzan 

sentenced  to  death  in  Alexandria  by  American  Minister,  65 
Missionaries 

customs  privileges  of,  95 
Mixed  Commissions 

U.S.  Consular  Court  Regulations,  132 
Mohammed,  The  Conqueror 

•policy  of,  towards  conquered  Greeks,   18;   in  harmony  with 
Moslem  system  of  jurisprudence,  23 

privileges  granted  to  Genoese  of  Galata,  14,  27 
Mohammed,  The  Prophet 

attitude  towards  non-Moslems,  5 
Moors 

respected  local  laws  in  Spain,  24 
Mortgage 

jurisdiction  of  consular  courts  in  questions  relating  to,  53 
Moslems 

attitude  of,  towards  foreigners,  4-8 

jurisprudence,  cod«s,  etc.,  6 

no  irreconciliable  hostility  between  Moslem  law  and  inter- 
national law,  8 

in  Jerusalem,  15 

in  Corsica  and  Sicily,  16 

in  Constantinople  before  1453,  17 


INDEX  151 

conflict  between  Moslem  jurisprudence  and  other  systems  in 
respect  to  personal  status,  113 

Sheri  basis  of  all  Moslem  law,  21,  87 

usury  not  countenanced  by  Moslem  law,  87 
Most-Favored-Nation 

exterritorial  rights  of  various  nations  granted  to  each  and 
all  through  principle  of,  38,  41 
Multeka-ul-ebhar 

Moslem  Code  drawn  up  by  Sheikh  Ibrahim,  6 
Mushrikin 

as  applied  to  pagans  and  idolaters,  5 
Mustemin 

applied  to  foreigners  in  Moslem  lands,  6 

applied  also  to  Moslems  in  foreign  lands,  7 
Myers 

forcible  extradition  from  Morocco,  64 

N 

Naturalization 

not  recognized  by  Turks  without  express  permission,  42 
New  Trial 

U.  S.  Consular  Court  Regulations,  124 
Niza 

as  interpreted  by  Turks  in  limited  sense,  68 
Nizamieh  Tribunals  ^ 

jurisdiction  of,  82 
Non-Moslems 

attitude  of  Koran  towards,  4,  5 

guarantees   of   Moslem  code  to,  6 

exempted   from  military  service,   19 

legal  status  of,  18-24 

not  subject  to  Shcri  law  in  matters  of  personal  status,  21 

granted  similar  rights  as  foreigners  by  treaty,  24 
Novgorod 

early  laws  of,  respecting  foreigners,  15 

O 

Oaths 

U.  S.  Consular  Court  Regulations,  129 
Oflfset 

U.  S.  Consular  Court  Regulations,  122 


152  INDEX 

Omar,  The  Caliph 

grants  privileges  to  Greek  Monks  in  Palestine,  lo 
Ottoman  Tribunals 

controversy  as  to  jurisdiction  of,  in  matters  of  inheritance, 

rent,  mortgage,  trademarks,  53 
right  of  foreigners  to  sue  in,  54 

jurisdiction  of,  in  matters  affecting  foreigners  and  natives,  75 
Tribunaux  Correctionnels,  82 
Nizamieh  Tribunals,  82 

Mixed  Commercial  Tribunals,  82;  foreign  assessors  in,  83 
law  administered  by,  87 
execution  of  sentences  of,  89 
jurisdiction   over    foreigners   more   than   nine   hours'   travel 

from  consular  representative,  46 

P 

Partnership 

U.  S.  Consular  Court  Regulations,   126 
Patriarchates 

Investiture    of    Greek    Patriarch    by    Mohammed    the    Con- 
queror, 18 

claim  jurisdiction  in  certain  cases  involving  foreigners,  54 

jurisdiction  in  questions  involving  personal  status,  21 
Persia 

practice  concerning  nationals  sentenced  by  Turkish  courts,  89 
Personality  of  Law 

as  distinguished   from  territorial  law,   12 

respected  by  English  in  India,  24 
Personal  Status 

meaning  of  term,  19 

jurisdiction  of  Patriarchates  in  questions  of,  21 

foreigners  carry  with  them  rights  of,  in 

conflict  of  Moslem  law  with  other  law  in  respect  to,  113 

consular  courts  should  have  jurisdiction  in  matters  involv- 
ing personal  status,  53,  114 
Phoenicians  in  Memphis,  9 
Pisa 

obtained  privileges  from  Greeks  and  Saracens,  15 
Police 

powers  of  French  Consul,  62 

powers  of  American  Consuls,  62 

arrest  of  foreigners,  62 


INDEX  153 

Political  Code,  Moslem,  6 

Porte,  The  Sublime,  (see  Imperial  Divan) 

formerly  adjusted  judicial  questions  involving  foreigners,  36 
negotiations  for  modification  of  exterritorial  regime,  45 

Portugal 

treaty  with  Turkey,  41 
claims  criminal  jurisdiction,  ^6 

Post-offices    (see  Correspondence) 

Praetor  Peregrinus,  19 

Private  International  Law 

relation  to  international  law,  103-112 

international   agreements   respecting   marriage,    divorce,   etc., 

105 
Third   Hague  Conference  on,   105 
opinions  of  continental  publicists  on,  106-110 
method  of  ascertaining  foreign  laws  to  be  applied  by  courts, 

IIS 
Probate 

U.   S.   Consular  Court  Regulations,   126 
Proteges,  93-95 

policy  of  Powers  in  respect  to,  93 

consular  proteges,  93 

foreign  proteges,  94 

religious  communities,  94 

permanent  and  other  proteges,  95 

U.  S.  Consular  Regulations,  126 
Protocol  (see  Real  Estate) 
Proxenoi,  9 
Prussia  (see  Germany) 

treaty  with  Turkey,  41 
Punishment 

in  Turkish  jails,  63 

powers  of  U.  S.  Consular  Courts,  64 

practice    of    Powers    in    respect    to    nationals    sentenced    by 
Turkish  courts,  89 

R 

Rayah,  19,  21 
Real  Estate 

Law  of  1867  granting  to  foreigners  right  to  own,  42 


154 


INDEX 


Protocol  defining  status  of  foreigners  owning  Real  Estate,  45 

controversy  as  to  jurisdiction  in  matters  of  rent,  mortgage, 
inheritance,  trademarks,  53 

jurisdiction  of  Nicamieh  tribunals  in  matters  relating  to,  82 
Reference 

U.  S.  Consular  Court  Regulations,   123 
Religious  Communities 

independent  status  of,   19 

as  proteges,  94 

protection  of  individuals  in,  94 

customs  exemptions  of,  94 
Rent 

controversy  as  to  jurisdiction  in  questions  of,  53 

jurisdiction  of  Nizamieh  tribunals  in  matters  of,  82 
Replevin 

U.  S.  Consular  Court  Regulations,   123 
Rhodes,  8,  16 
Roumania 

practice    in     respect    to    nationals     sentenced    by    Turkish 
courts,  89 
Russia 

early  treaties  with  Byzantium,  11  ■ 

treaty  with  Turkey,  41 

practice  in  respect  to  nationals  sentenced  by  Turkish  courts, 
89 

S 
Safeguards,  Guarantees 

granted  to  non-Moslems,  4,  6 
Sardinia 

privileges  of  foreigners  in,  under  Arabs,  24 

treaty  with  Turkey,  41 
Scotland 

allowed  to  adhere  to  Capitulations  of  1535,  34 
Seamen 

U.   S.   Consular   Court  Regulations,   126 
Servitude,  International 

customs  dues  in  treaty  with  Venice  constituted,  30 
Sheri 

base  of  all  laws,  21,  87 

not  applicable  to  Christians,  21 

invoked  to  supply  deficiencies  of  civil  and  criminal  codes,  88 


INDEX 


155 


Sicily 

local  laws  respected  by  Arabs  in,  24 
Soliman  II 

confirmed  privileges  granted  Franks  and  Catalans  in  Alex- 
andria, 32 

entered  into  treaty  with  Francis  I,  33 
Soulh,  4,  29 
Sovereignty 

alienation  of  sovereign  rights  of  Turkey,  68 

respect  for  sovereign  rights  basis  of  future  adjustments  with 
Powers,  112 

jurisdiction    in    matters    affecting    public    law    and    order    a 
right  of,  68 
Spain 

exterritorial  privileges  accorded  by  Visigoths  in,   10 

local  laws  respected  by  Moors,  24 

treaty  with  Turkey,  41 

practice  regarding  nationals  sentenced  by  Turkish  courts,  89 
Summonses  and  sentences 

of  Turkish  courts,  86 

U.  S.  Consular  Court  Reuglations,  132 
Suratt 

forcible  extradition  from  Egypt,  64 
Sweden 

treaty  with  Turkey,  41 

practice  in  respect  to  nationals  sentenced  by  Turkish  courts. 


Telonarii,  10 
Tender 

U.  S.  Consular  Court  Regulations,   123 
Territorial  Law 

a  modern  notion,  12 

under  theory  of  common  law,   104 
Testimony 

of  Christians  not  of  equal  value  with  Moslems',  36 
Trademarks 

jurisdiction  claimed  by  consular  courts,  54 


156  INDEX 

Treaties 

Venetian  Capitulations,  31,  39 

Capitulations  of  1535,  33 

Capitulations  of  1740,  38 

of  European   Powers  with  Turkey,  41 
Tribunaux  Correctionnels. 

jurisdiction   over   foreigners   charged  with   crimes  by   Otto- 
man subjects,  82 
Trustee  Process 

U.  S.  Consular  Court  regulations,  122 
Tunstall 

forcible  extradition  of,  from  Morocco,  64 
Turkey 

rights  of  foreigners  under  international  law  in,   105 

need  of  basis  for  adjustment  of  question  of  jurisdiction  over 
foreigners  between  Powers  and,  112 

right  of  jurisdiction  in  all  that  affects  public  law  and  order, 
112 

treaties  with   (see  Treaties) 
Turkish  Tribunals   (see  Ottoman  Tribunals) 

U 

United  States 

treaty  with  Turkey,  41 

Article  IV  a  precedent  for  other  nations,  41  (see  Article  IV) 

Real  Estate  Protocol  signed  by,  44 

case  of  Vartanian  and  Afarian,  78 

claims  to  jurisdiction  in  criminal  cases,  76  (see  Article  IV) 

practice    in    respect    to    Americans    sentenced    by    Turkish 
courts,  89 

jurisdiction  of  French  Consuls  in,   115 
Usury 

not  countenanced  by  Moslem  law,  87 


Vartanian 

arrest  and  trial  of,  by  Turks,  78 
Venice 

Venetian  quarter  in  Constantinople,  13 

privileges  granted  by  Sultan  of  Aleppo,  16 

treaty  of  1454  with  Turks,  29 


INDEX  157 

compensation   for  property  of   Venetians   destroyed   in  cap- 
ture of  Constantinople,  29 

customs  dues  fixed  by  treaty,  30 

treaty  with  Sultan  of  Konia,  31 

privileges  granted  by  Sultan  of  Egypt,  31 
Vessels 

inviolability  from  search,  91 

jurisdiction  of  consuls  over,  115 

status  determined  by  international  law,   102 
Visigoths 

granted  exterritorial  privileges  to  foreigners  in  Spain,  10 

,    .w 

Warings 

early  diplomatic  relations  with  Byzantium,   iii 
Wisby 

privileges  enjoyed  by  merchants  of,  15 


Young  Turks 

recognized   national   status   of   religious   communities,  20 
attempted  compulsory  military  service  of  non-Moskm  sub- 
jects, 20 


r 


3X 


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